Portola Packaging, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 2014

361 N.L.R.B. 1316 (N.L.R.B. 2014)

1316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Portola Packaging, Inc. and Marta Magallon Corona
and Jorge Garcia and United Food and Com-
mercial Workers Union, Local No. 99.

Portola Packaging, Inc. and United Food and Com-
mercial Workers Union, Local No. 99. Cases 28–
CA–067274, 28–CA–067345, 28–CA–070621, and
28–RC–067973
December 16, 2014
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS MISCIMARRA, JOHNSON, AND SCHIFFER
On September 13, 2012, Administrative Law Judge
Gregory Z. Meyerson issued the attached decision. The
General Counsel filed exceptions and a supporting brief,
the Respondent filed an answering brief, and the General
Counsel filed a reply brief. The Respondent filed excep-
tions and a supporting brief, and the General Counsel and
the Petitioner filed answering briefs. The Union filed
cross-exceptions and a supporting brief, and the Re-
spondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
1 The General Counsel does not except to the judge’s dismissal of
the complaint allegations that the Respondent violated Sec. 8(a)(1) by
(1) promulgating an overly broad and discriminatory rule prohibiting
employees from presenting Human Resources Manager Christopher
McClanahan with concerted complaints, (2) issuing employee Jorge
Garcia a disciplinary warning on October 4, 2011, (3) threatening em-
ployee Evangelina Villegas, during a mid-November 2011 conversation
between Villegas and Production Supervisor Fabian Franco, with un-
specified reprisals because employees engaged in union and other con-
certed activity, and (4) maintaining a handbook rule prohibiting em-
ployees from leaving their workstations during normal working time
without the Respondent’s permission.
2 The Respondent’s exceptions to the judge’s unfair labor practice
findings turn largely on the judge’s credibility determinations. The
Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
The judge credited the testimony of current employees of the Re-
spondent over contrary testimony of the Respondent’s supervisors and
managers, properly citing well-established Board precedent holding
that the testimony of current employees “in direct contradiction to
certain statements of their present supervisors . . . is apt to be particular-
ly reliable, inasmuch as the witness is testifying adversely to his or her
pecuniary interest, a risk not lightly undertaken.” Gold Standard En-
terprises, Inc., 234 NLRB 618, 619 (1978), enf. denied on other
grounds 607 F.2d 1208 (7th Cir. 1979). However, the judge character-
ized this precedent as establishing a “rebuttable presumption” of credi-
bility. We do not rely on that characterization. “[A] witness’ status as
only to the extent consistent with this Decision, Order,
and Direction of Second Election, and to adopt his rec-
ommended Order as modified and set forth in full be-
low.4
We disagree with the judge’s decision in two respects.
First, we conclude that the judge erred when he found
that the Respondent violated Section 8(a)(1) of the Act
on October 5, 2011, when Manager Tim DeCrow told
employee Jorge Garcia that with one more warning, he
would no longer work for the Respondent. Second, con-
trary to the judge, we conclude that the Respondent did
violate Section 8(a)(1) when it prohibited employee Ma-
ria Magallon from using coworker Garcia to translate for
her, as a reprisal for Garcia’s protected concerted activi-
ty. We examine each issue in turn.
1. Manager DeCrow’s statement to employee
Garcia
The Respondent utilizes a four-step progressive disci-
plinary procedure: verbal reminder, first written warn-
ing, second written warning, termination. On May 6,
2011,5 the Respondent issued Garcia a verbal reminder,
memorialized in writing, after he failed to properly use a
a current employee may be a significant factor, but it is one among
many which a judge utilizes in resolving credibility issues.” Flexsteel
Industries, 316 NLRB 745, 745 (1995), affd. mem. 83 F.3d 419 (5th
Cir. 1996). Our careful review of all the judge’s credibility determina-
tions persuades us that he properly considered a variety of factors bear-
ing on witness credibility, including current-employee status, notwith-
standing his inaccurate characterization of the latter.
We have affirmed the judge’s findings (among others) that the Re-
spondent violated Sec. 8(a)(1) by (i) soliciting, by its agent Armando
Talancon on November 10, 2011, employee complaints and grievances
and promising employees increased benefits and improved terms and
conditions of employment if they rejected the Union as their collective-
bargaining representative, and (ii) threatening employees with unspeci-
fied reprisals on October 5, 2011, by Production Manager Tim
DeCrow, on November 10, 2011, by Talancon, and on November 16,
2011, by Production Supervisor Ray Buchanan. In light of these find-
ings, we find it unnecessary to pass on the allegations that the Re-
spondent, (1) by Supervisor Franco in mid-November 2011, solicited
employee complaints and grievances and promised employees in-
creased benefits and improved terms and conditions of employment if
they rejected the Union as their collective-bargaining representative; (2)
by DeCrow in late November 2011, and General Manager Tim Tyler in
mid-November 2011, threatened employees with unspecified reprisals.
We do not pass on these cumulative allegations because finding these
additional violations would not affect the remedy.
The Respondent contends that some of the judge’s findings demon-
strate bias. On careful examination of the judge’s decision and the
entire record, we are satisfied that this contention is without merit.
3 To conform to our findings herein, we delete the judge’s Conclu-
sions of Law 3(d) and (k).
4 We shall modify the judge’s recommended Order to conform to our
findings and to the Board’s standard remedial language. We shall also
substitute a new notice to conform to the Order as modified and in
accordance with our decision in Durham School Services, 360 NLRB
694 (2014).
5 All dates are in 2011.
361 NLRB No. 147

PORTOLA PACKAGING, INC. 1317
new computer system to track his hours worked and to
record parts used in repairs. Garcia signed this warning,
but below his signature he wrote that employees needed
additional training and supervisors needed to do more to
make the system work. Garcia also discussed with
coworkers their shared concerns about being overworked
and about Supervisor Buchanan’s unresponsiveness to
their concerns. Garcia brought some of these concerns to
the attention of DeCrow. The General Counsel did not
allege, however, that Garcia’s May 6 verbal reminder
was unlawful retaliation for his protected concerted ac-
tivity.
On October 4, the Respondent issued Garcia a first
written warning for failing to complete assessments de-
signed to measure employees’ job skills and identify are-
as appropriate for training. The judge found that Re-
spondent did not violate Section 8(a)(1) by issuing this
discipline. The General Counsel does not dispute this
finding.
The judge also found, and we agree, that on October 5,
the Respondent lawfully disciplined Garcia when it is-
sued him a second written warning for incidents that oc-
curred in September. We agree with the judge that, when
presenting this warning to Garcia, Respondent (by Man-
ager DeCrow) violated Section 8(a)(1) by telling Garcia
that he was provoking other employees to complain, was
not good to have around, and was not good for business.
Regardless of any animus this statement demonstrated
toward Garcia’s earlier protected concerted activity, we
further agree with the judge that, under Wright Line,6 the
Respondent showed that it would have disciplined Garcia
on October 5 even in the absence of that protected activi-
ty. The September incidents clearly violated the Re-
spondent’s policies and procedures. Among other things,
Garcia ignored a supervisor’s order to start a machine
and left for lunch instead, and he failed to answer his
phone one night when he was “on call” for emergency
repairs. There is no evidence that Garcia was treated in a
disparate fashion from any of the other maintenance
technicians.
Later in the day on October 5, Garcia approached
DeCrow and said that some of the statements in the se-
cond written warning were untrue. DeCrow replied,
“Jorge, one more warning and you’re no longer going to
be at Portola.” The judge found that this statement con-
stituted an unlawful threat to discharge Garcia for engag-
ing in protected activity. We disagree. DeCrow’s state-
ment accurately reflected Garcia’s status under the Re-
6 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Mgmt. Corp., 462 U.S. 393 (1983). We find it unnecessary to pass on
the judge’s recitation of the Wright Line standard.
spondent’s progressive discipline system. Garcia had
received a verbal reminder, a first written warning, and a
second written warning. As stated above, none of these
disciplines was found unlawful. If Garcia received “one
more warning,” it was simply true that he would “no
longer . . . be at Portola,” i.e., his employment would be
terminated as provided under the Respondent’s progres-
sive discipline system. Moreover, although DeCrow
unlawfully referred to Garcia’s protected activities when
he gave Garcia the second written warning earlier in the
day, neither he nor Garcia mentioned Garcia’s protected
activities during their separate exchange later that day.
In the later exchange, Garcia questioned the factual accu-
racy of the warning. That questioning, which concerned
Garcia alone, was not concerted. See Meyers Industries,
268 NLRB 493, 497 (1984) (action not concerted where
“solely by and on behalf of the employee himself”) (sub-
sequent history omitted). Under these circumstances, we
do not find DeCrow’s factually accurate statement to be a
violation of Section 8(a)(1).7
2. The Respondent’s prohibition on employee Magal-
lon’s use of Garcia as a translator
The judge found that in late May 2011, the Respondent
committed no violation when it told Magallon, a Span-
ish-speaking employee, that she could no longer use
Garcia (a bilingual employee) to translate for her in her
conversations with supervisors. The Respondent based
this prohibition on an incident in which Garcia, while
translating a complaint on Magallon’s behalf, purported-
ly “disrespected” Magallon’s Supervisor, Ray Buchanan.
The judge’s finding was based on his inferences that dur-
ing that incident Garcia functioned solely as an interpret-
er for Magallon, not as an advocate, and that because
Magallon’s complaint was solely on her own behalf, the
two employees did not engage in concerted activity for
mutual protection. We disagree.
The record establishes that Magallon and Garcia en-
gaged in protected concerted activity and that the Re-
spondent’s prohibition was unlawfully coercive.8 Magal-
lon asked Garcia to translate for her when she com-
plained to Buchanan that she did not want to serve as a
periodic “relief team lead,” as Buchanan was requiring
her to do. It is undisputed that Buchanan responded by
telling her she had to do as he told her and then, when
she did not acquiesce, began to yell at her. Magallon
7 Because we find DeCrow’s statement lawful, we do not agree with
the judge that it demonstrates that the Respondent harbored animus
toward its employees who engaged in protected concerted activity.
8 Although the complaint alleges that the prohibition was an imposi-
tion of “more onerous working conditions,” it also alleged that the
prohibition was an act of coercion in violation of Sec. 8(a)(1), and this
allegation was fully litigated.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1318
testified that she then “asked Mr. Garcia to ask Buchanan
why was he mad, why was he turning his back on us, if I
didn’t want that responsibility.” Garcia translated this,
and Buchanan answered angrily that Magallon “didn’t
have a choice.” Magallon testified that Garcia then
asked Buchanan, “why are you mad, why you treating
her like that, why you, why you yelling at her, why are
you treating her badly?”9 Buchanan did not answer, but
gave Garcia an “aggressive stare,” turned his back, and
walked away. There is no dispute that Garcia never
raised his voice or said anything improper.
Although Garcia may only have translated for Magal-
lon through most of the conversation (and assuming this
was not protected in itself),10 he departed from that role
and took up Magallon’s cause when he independently
questioned Buchanan’s behavior. Buchanan reacted to
this by staring angrily at Garcia and not at Magallon,
which supports a finding that Buchanan attributed the
question solely to Garcia. Similarly, when Buchanan and
the Respondent’s manager, Chris McClanahan, informed
Magallon the following day that she could no longer use
Garcia as an interpreter because of his “disrespect,” they
did not threaten or reprimand her, but attributed miscon-
duct only to Garcia, further confirming that in this in-
stance he had not acted merely as a translator. Because
Garcia’s “disrespect” consisted solely of joining with
another employee in objecting to a supervisor’s abusive
behavior, the Respondent’s prohibition against using him
to translate was aimed directly at this protected concerted
activity and was unlawfully coercive.11
DIRECTION OF SECOND ELECTION
A second election by secret ballot shall be held among
the employees in the unit found appropriate, whenever
the Regional Director deems appropriate. The Regional
Director shall direct and supervise the election, subject to
the Board’s Rules and Regulations. Eligible to vote are
those employed during the payroll period ending imme-
9 The judge found that “Garcia asked [Buchanan] why he was so an-
gry, why he was yelling, and why he was treating Magallon badly.”
Buchanan did not testify about this incident.
10 No party has excepted to the judge’s stated assumption that trans-
lating for another employee who is pursuing an individual grievance
does not constitute protected concerted activity.
11 “The Board has consistently held that concerted employee action,
when invoked peaceably, to further an employment claim . . . albeit
personal in nature, remains within the protective mantle of Section 7 of
the Act.” Cub Branch Mining, 300 NLRB 57, 58 (1990). See also
Buck Brown Construction, 283 NLRB 488, 489 (1987) (attempt to help
discharged coworker get rehired protected); Alumina Ceramics, 257
NLRB 784 (1981) (voicing employee’s displeasure with discharge of
coworker protected), enfd. in relevant part 690 F.2d 136 (8th Cir.
1982); Columbia University, 236 NLRB 793, 794–795 (1978) (inter-
vention on behalf of coworker being discharged protected); AMP, Inc.,
218 NLRB 33, 36 (1975) (similar).
diately before the date of the Notice of Second Election,
including employees who did not work during the period
because they were ill, on vacation, or temporarily laid
off. Also eligible are employees engaged in an economic
strike that began less than 12 months before the date of
the first election and who retained their employee status
during the eligibility period and their replacements.
Jeld-Wen of Everett, Inc., 285 NLRB 118 (1987). Those
in the military services may vote if they appear in person
at the polls. Ineligible to vote are employees who have
quit or been discharged for cause since the payroll peri-
od, striking employees who have been discharged for
cause since the strike began and who have not been re-
hired or reinstated before the election date, and employ-
ees engaged in an economic strike that began more than
12 months before the date of the first election and who
have been permanently replaced. Those eligible shall
vote whether they desire to be represented for collective
bargaining by United Food and Commercial Workers
Union, Local No. 99.
To ensure that all eligible voters have the opportunity
to be informed of the issues in the exercise of their statu-
tory right to vote, all parties to the election should have
access to a list of voters and their addresses that may be
used to communicate with them. Excelsior Underwear,
156 NLRB 1236 (1966); NLRB v. Wyman-Gordon Co.,
394 U.S. 759 (1969). Accordingly, it is directed that an
eligibility list containing the full names and addresses of
all the eligible voters must be filed by the Employer with
the Regional Director within 7 days from the date of the
Notice of Second Election. North Macon Health Care
Facility, 315 NLRB 359 (1994). The Regional Director
shall make the list available to all parties to the election.
No extension of time to file the list shall be granted by
the Regional Director except in extraordinary circum-
stances. Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper
objections are filed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf

PORTOLA PACKAGING, INC. 1319
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT promulgate an overly broad rule prohib-
iting you from discussing your wages with each other.
WE WILL NOT promulgate an overly broad rule prohib-
iting you from discussing with other employees what
occurred in meetings with supervisors.
WE WILL NOT solicit grievances from you and implied-
ly promise to remedy them in order to discourage you
from supporting the Union.
WE WILL NOT promise you increased benefits and im-
proved terms and conditions of employment in order to
discourage you from supporting the Union.
WE WILL NOT threaten you with discharge if you select
the Union as your bargaining representative.
WE WILL NOT threaten you with unspecified reprisals if
you select the Union as your bargaining representative.
WE WILL NOT threaten you with unspecified reprisals if
you engage in protected concerted activities.
WE WILL NOT coercively interrogate you about your
union and protected concerted activities.
WE WILL NOT create the impression that we are en-
gaged in surveillance of your union or other protected
concerted activities.
WE WILL NOT threaten to withhold assistance from you
because you engage in union and other protected con-
certed activities.
WE WILL NOT threaten you with reduced wages and
benefits if you select the Union as your bargaining repre-
sentative.
WE WILL NOT maintain an overly broad rule in our em-
ployee handbook prohibiting you from providing any
information regarding the Company to the news media.
WE WILL NOT prohibit employees from using fellow
employees of their choice as translators to communicate
with supervisors or managers, as a reprisal for engaging
in protected concerted activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind the rule in our employee handbook
prohibiting you from providing any information regard-
ing the Company to the news media.
WE WILL furnish you with an insert for the current em-
ployee handbook that (1) advises that the unlawful rule
has been rescinded, or (2) provides a lawfully worded
rule on adhesive backing that will cover the unlawful
rule; or publish and distribute to employees revised em-
ployee handbooks that (1) do not contain the unlawful
rule, or (2) provide a lawfully worded rule.
WE WILL permit employee Maria Magallon to use em-
ployee Jorge Garcia as a translator to communicate with
supervisors and managers.
PORTOLA PACKAGING, INC.

The Board’s decision can be found at
www.nlrb.gov/case/28–CA–067274 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.

Sandra L. Lyons, Esq., for the Acting General Counsel.
Frederick C. Miner, Esq. and Sara Silvester, Esq., of Phoenix,
Arozpma, for the Respondent/Employer.
Elizabeth Q. Hinckle, Esq., of San Francisco, California, for the
Union/Petitioner.
DECISION
STATEMENT OF THE CASE
GR
EGO
RY
Z.
ME
YER
SON

Boa
rd
(the
Boa
rd)
on
Jan
uar
y
31,
201
2.
The
co
mpl
aint
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1320
was
bas
ed
on
a
nu
mb
er
of
un-
fair
la-
bor
pra
ctic
e
cha
rge
s,
as
cap
tion
ed
abo
ve,
file
d
re-
spe
ctiv
ely,
in
Cas
e
28–
CA
–
067
274
by
Ma
rta
Ma
gal-
lon
Co-
ro-
na
(M
aga
llon
),
an
in-
divi
du-
al,
in
Cas
e
28–
CA
–
067
345
by
Jor
ge
Gar
cia,
an
in-
divi
du-
al,
and
in
Cas
e
28–
CA
–
070
621
by
Uni
ted
Foo
d
and
Co
mm
er-
cial
Wo
rker
s
Un-
ion,
Lo-
cal
No.
99
(the
Un-
ion
or
the
Peti
ti-
tion
er),
and
her
eaf-
ter
PORTOLA PACKAGING, INC. 1321
re-
ferr
ed
to
col-
lec-
tive
ly
as
the
Cha
rgin
g
Part
ies.
The
co
mpl
aint
alle
le-
ges
that
Por
tola
Pac
kag
ing,
Inc.
(the
Re-
spo
nde
nt,
the
Em
plo
yer,
or
Por
to-
la)
vio-
lat-
ed
Sec
tion
8(a)
(1)
of
the
Na-
tion
al
La-
bor
Re-
la-
tion
s
Act
(the
Act
).
The
Re-
spo
nde
nt
file
d a
tim
ely
an-
swe
r to
the
co
mpl
aint
den
yin
g
the
co
mm
issi
si-
on
of
the
al-
leg
ed
un-
fair
la-
bor
pra
ctic
es.1
Pursuant to a representation petition filed by the Petitioner in
Case 28–RC–067973 and a Stipulated Election Agreement
thereafter executed by the parties and approved by the Regional
Director on November 7, 2011, an election by secret ballot was
conducted on December 1, 2011,2 among a unit of the Employ-
er’s employees. Following the election, the Region served a
Tally of Ballots upon the parties, which showed that of approx-
imately 44 eligible voters, 41 cast ballots, of which 19 were
cast for the Petitioner and 19 were cast against the Petitioner.
1 All pleadings reflect the complaint and answer as those documents
were finally amended at the hearing. (See Motion to Amend Complaint
(GC Exh. 2) and Second Motion to Amend Complaint (GC Exh. 26)).
2 All dates refer to 2011, unless otherwise indicated.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1322
There were 3 challenged ballots, a number sufficient to affect
the results of the election.
On December 8, 2011, the Petitioner filed timely objections
to conduct affecting the results of the election. On January 26,
2012, the Regional Director issued an Order Directing Hearing
on Challenged Ballots and Objections and Notice of Hearing.
In his order, the Regional Director found that both the chal-
lenged ballots and objections raised substantial and material
issues of fact and credibility, which could best be resolved at a
hearing. Further, on February 15, 2012, the Regional Director
issued an Order Consolidating Cases and Notice of Hearing in
which he found that common issues exist in Case 28–RC–
067973, and Cases 28–CA–067274, 28–CA–067345, and 28–
CA–070621. He therefore ordered that all these matters be
consolidated for purposes of hearing, ruling, and decision, by
an administrative law judge. Accordingly, I heard the issues
relating to the objections and challenged ballots at the same
time as I heard the unfair labor practice allegations in this com-
bined matter.
All parties appeared at the hearing, and I provided them with
the full opportunity to participate, to introduce relevant evi-
dence, to examine and cross-examine witnesses, and to argue
orally, and file briefs. Based on the record, my consideration of
the briefs filed by counsel for the General Counsel, counsel for
the Respondent, and counsel for the Union, and my observation
of the demeanor of the witnesses,3 I now make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that at
all times material, the Respondent has been a Delaware corpo-
ration, with an office and place of business in Tolleson, Arizo-
na (the Tolleson facility), where it has been engaged in the
business of manufacturing plastic closures and containers for
food and beverage products. Further, I find that during the 12-
month period ending October 21, 2011, the Respondent, in
conducting its business operations as just described, purchased
and received at its Tolleson facility goods valued in excess of
$50,000 directly from points located outside the State of Arizo-
na.
Accordingly, I conclude that the Respondent is now, and at
all times material, has been, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that at
all times material, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
3 The credibility resolutions made in this decision are based on a re-
view of the testimonial record and exhibits, with consideration given
for reasonable probability and the demeanor of the witnesses. See
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Where witnesses
have testified in contradiction to the findings herein, I have discredited
their testimony, as either being in conflict with credited documentary or
testimonial evidence, or because it was inherently incredible and un-
worthy of belief.
III. ALLEGED UNFAIR LABOR PRACTICES AND ALLEGED
OBJECTIONABLE CONDUCT
A. Background Facts
The Respondent is an international company with worldwide
operations. It is based in Naperville, Illinois, and has eight
facilities in North America, including the Tolleson, Arizona
facility, which is the only facility involved in these proceed-
ings. At that facility the Respondent manufactures plastic clo-
sures, more commonly referred to as bottle caps, and related
items for a variety of beverages and food products, such as
juice and milk. The Tolleson facility has been in operation for
approximately 8 years. It operates 24 hours a day, 7 days a
week, with three separate work shifts. There are approximately
91 employees employed at the facility, working in approxi-
mately 27 different job classifications.
The bottle caps are manufactured using “injection-mold”
technology. There are approximately 39 injection-mold ma-
chines or presses, in operation at the facility, with related sup-
port or ancillary machines, such as label printing and foam
insulation, also in operation. The manufacturing process can be
summarized as follows: plastic pellets, also known as resin, are
melted into a fluid, liquid state, which is then injected into a
cavity in a steel mold, allowed to cool, and then ejected into a
finished cap. On a busy shift, as many as 20–25 presses may be
operating at any one time.
The highest ranking official at the Tolleson plant is Tim Ty-
ler, general manager. A number of managers work at the plant
under the direction of Tyler, including Chris McClanahan, hu-
man resources and safety manager, Paul Rose, maintenance
manager, Tim DeCrow, production manager, Ray Buchanan,
production supervisor, and Fabian Franco, production supervi-
sor. All the named individuals are supervisors as defined by
the Act.
For purposes of analyzing the alleged unfair labor practices,
objections, and challenged ballots, it is necessary preliminarily
to understand the work performed by certain of the Employer’s
job classifications and the way in which those employees inter-
act with each other. The largest group of employees employed
at the facility is the “production team,” numbering 36. While
various managers testified that the Respondent does not have
any group of employees referred to as “operators,” the individ-
ual production team members who testified indicated that they
frequently refer to themselves as operators.
During each shift, there are a certain number of presses in
operation. One production team member is assigned to monitor
each press during a shift. Besides monitoring the production
from the presses, production team members pack the caps into
boxes as the caps come off a conveyor belt from the presses.
They seal the boxes, label them, and take the boxes to a central
conveyor, which transports them to a staging area. “Production
team leads” work alongside the production team members,
relieving the team members when they go on breaks. The team
leads assist the “production supervisors” who are responsible
for the output from the presses. The production team members
and the team leads report directly to the production supervisors.
“Staging team members” receive boxes of caps from the
production team members, and sort the boxes on individual

PORTOLA PACKAGING, INC. 1323
pallets according to the customer and product. They then move
the loaded pallets from the staging area to the warehouse. Stag-
ing team members report to the production supervisors.
At the time of the election, there were three employees clas-
sified as “process technicians,” Thomas Turner, Michael Burns,
and Gabriel Hernandez. These were the three employees
whose ballots were challenged by the Union during the elec-
tion. The process technicians are primarily responsible for
programming into control panels on the presses the various
computerized settings, such as temperature, pressure, and
speed, which affect the production of the various machines.
They also provide a daily report on the performance of the
molds, specifically the percentage of individual cavities within
each mold that are functioning properly. It is the steel molds on
the presses that contain cavities into which the plastic is inject-
ed. The process technicians are not assigned to a specific press,
but, rather, they circulate around the production floor trouble
shooting the presses. Sometimes the process technicians are
required to open up the presses to inspect the cavities and, if
necessary, block off cavities that are not functioning properly.
While various witnesses testified differently, the evidence indi-
cates that the process technicians spend between 40 and 70
percent of their working time on the production floor, with the
remainder of their time spent in various locations and offices
preparing reports on laptop computers. The process technicians
do not report to the production supervisors, but instead report
directly to Production Manager Tim DeCrow.
“Maintenance technicians” are responsible for performing
machine repair and preventive maintenance using mechanical,
electrical, and pneumatic tools. They troubleshoot and repair
faulty equipment and perform preventive maintenance tasks on
machines, including presses, ancillary equipment, and machines
supporting the plant’s infrastructure. As of the date of the elec-
tion, there were seven maintenance technicians employed at the
facility, one of whom was Jorge Garcia. Maintenance techni-
cians are not directly involved in the production process and do
not perform production tasks.4 Some of the maintenance tech-
nicians work on “GO teams,” with the “GO” standing for “get
organized.” This involves a “reliability centered maintenance”
system where similar equipment is assigned to a specialized
team familiar with that equipment.5 While Production Manager
DeCrow directly supervises all Go team members, including
maintenance technicians, Maintenance Manager Rose also is
responsible for the hiring, training, and discipline of the
maintenance technicians on the Go teams. For those mainte-
nance technicians not assigned to Go teams, Rose is their im-
mediate supervisor.
4 The bargaining unit as set forth in the Stipulated Election Agree-
ment excluded, among other employees, the “maintenance mechanics.”
While at the hearing, the parties did not specifically stipulate that
maintenance mechanics and maintenance technicians are the same
group of employees, it appears from the record that such is the case,
and, in any event, no party is contending that maintenance technicians
should be included in the appropriate bargaining unit.
5 Some production team members and some process technicians are
assigned to Go teams, while other production team members and pro-
cess technicians are specifically assigned to work on a given shift,
rather than on a Go team.
B. Protected Concerted Activity
Section 7 of the Act guarantees employees “the right to self-
organization, to form, join, or assist labor organizations . . . and
to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection. . . . .” Em-
ployees are engaged in protected concerted activities when they
act in concert with other employees to improve their working
conditions. Eastex, Inc. v. NLRB, 437 U.S. 556 (1987); NLRB
v. Washington Aluminum Co., 370 U.S. 9, 14 (1962). An em-
ployer may not retaliate against an employee for exercising the
right to engage in protected concerted activity. Triangle Elec-
tric Co., 335 NLRB 1037, 1038 (2001); Meyers Industries, 268
NLRB 493, 479 (1984). An employer violates Section 8(a)(1)
of the Act when it discharges an employee, or takes some other
adverse employment action against him, for engaging in pro-
tected concerted activity. Rinke Pontiac Co., 216 NLRB 239,
241, 242 (1975). Further, the Board has found that an employ-
er violates the Act when threats of an “unspecified reprisal” are
made because employees engage in union activity. Certainly,
by analogy, the same would apply to protected concerted activi-
ty. Cf. Atlas Logistics Group Retail Services (Phoenix), 357
NLRB 353, 353, fn. 2 (2011); St. Margaret Mercy Healthcare
Centers, 350 NLRB 203, 205 (2007).
The Board, with court approval, has construed the term
“concerted activities” to include “those circumstances where
individual employees seek to initiate, or induce, or to prepare
for group action, as well as individual employees bringing truly
group complaints to the attention of management.” Meyers
Industries, Inc., 281 NLRB 882 (1986), affd. sub nom. Prill v.
NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S.
1205 (1988); See also NLRB v. City Disposal Systems, Inc., 465
U.S. 822, 831 (1984) (affirming the Board’s power to protect
certain individual activities and citing as an example “the lone
employee” who “intends to induce group activity”).
In her posthearing brief, counsel for the General Counsel be-
gins her discussion of the employees’ alleged protected con-
certed activity by talking about employee Jorge Garcia. As
noted above, Garcia was a maintenance technician. At the time
of the hearing, Garcia had been employed by the Respondent
for 24 years, having moved with the Employer when it closed a
plant in California and opened the Tolleson facility. Initially,
Garcia was assigned to work a specific shift at the plant. How-
ever, in August 2011, he was asked to become a member of a
Go team, which he agreed to do as the hours of work suited him
better. At the time he testified, Garcia was assigned to the 5-
gallon Go team, which was responsible for the manufacture of
5-gallon lids.
According to the testimony of Production Manager Tim
DeCrow, in the spring of 2011, the maintenance technicians
began training on a computer program known as the Enterprise
Asset Management (EAM) System. This system is designed to
keep track of all the hours worked by the maintenance techni-
cians, showing how their time was spent, and also to keep a
record of the various parts utilized by the maintenance techni-
cians in the course of repairing machinery. The person respon-
sible for training the maintenance technicians on the EAM Sys-
tem was Maintenance Manager Paul Rose. He testified that a
number of training sessions were given to the maintenance

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1324
technicians, including Jorge Garcia. However, even after the
training, only about one third of the maintenance technicians
were reporting the 7 out of 8 hours of labor that the Respondent
was demanding, and/or were failing to list the parts that they
used in making repairs.
Garcia testified that because he was having difficulty learn-
ing to use the EAM System, that Rose required him to sign a
document entitled “EAM Training Acknowledgement Form.”
The document was dated May 6, 2011. It lists certain “Specific
Expectations” of the employee, those requirements being the
reporting of at least 7 out of 8 hours worked and listing those
parts used while repairing machinery. The document stressed
the importance of these reporting requirements, and the last
sentence read as follows: “Any failure to meet the specific ex-
pectations outlined above will follow PPI’s employee perfor-
mance disciplinary procedures up to and including termina-
tion.” (GC Exh. 16.) According to Garcia, Rose never in-
formed him that this document constituted a verbal reprimand,
and the first step in the Respondent’s progressive disciplinary
process. Apparently, Rose required that the other maintenance
technicians who were not satisfying the EAM reporting re-
quirements also sign this form, as counsel for the General
Counsel does not contend that the mere signing of this form
constituted disparate treatment towards Garcia.
As he signed the form, Garcia added certain comments at the
bottom. (GC Exh. 16.) Garcia’s handwriting is difficult to
read, but when he testified, Garcia read out loud what he had
written as follows: “We need a lot more training with the sys-
tem EAM. A lot of the equipment don’t [sic] have the location
and it is hard to find it in the system. Also, the supervisors
need to make the work orders so when we can’t close after
work is done.” Garcia testified that he and the other mainte-
nance technicians were not proficient on the computer and
needed more training in the system. According to Garcia, re-
porting into the EAM System was taking a lot of time, it was
hard to find parts listed in the computer, and supervisors needed
to input certain information into the system first, in order to
save the maintenance technicians’ time. However, it is im-
portant to note that while Garcia contends that his concerns
were shared by other maintenance technicians, there is no evi-
dence that Garcia spoke with fellow employees about these
specific complaints.
Garcia did testify that in mid-May he discussed with
coworkers other issues that they were facing at work. He men-
tioned talking with “operators” and maintenance technicians,
and named a number of individuals. He testified that these
conversations were held daily in the lunchroom during break-
time. However, when pressed by counsel for the General
Counsel to specify the subjects that were discussed, Garcia was
only able to recall the “operators” complaining that they had
too many machines for which they were responsible, and so
they were being over worked, and complaints about Production
Supervisor Ray Buchanan being unresponsive to their concerns.
Marta Magallon Corona (Magallon), a production team
member, who indicated that her job position was that of “ma-
chine operator,” testified that in May 2011, in the plant dining
room and parking lot, she had conversations with fellow em-
ployees about work concerns that they were having. She then
listed a number of employees with whom she had conversations
about being over worked because there were fewer employees
available to operate more machines, and about mistreatment
from Supervisor Ray Buchanan. It appears that these were the
same complaints that Garcia testified he had discussed during
the same time period with fellow employees.
Another production team member, Evangelina Villegas, who
indicated that her job position was that of “operator,” also testi-
fied about work-related concerns that she discussed with fellow
employees in May 2011. According to Villegas, they discussed
“being treated badly” by Supervisor Ray Buchanan, who would
“yell” at them, and about being over worked. She mentioned
talking with some of the same employees who were mentioned
by Magallon and Garcia.
According to Garcia, in May 2011, he brought the com-
plaints of the production team members to the attention of Pro-
duction Manager Tim DeCrow. Garcia testified that he told
DeCrow that “the operators, they were saying they have too
much work and [it’s] hard for them to handle.” In response,
DeCrow allegedly said that he was “tired of hear[ing] the oper-
ators cry, wah, wah, wah.” Garcia testified that he understood
DeCrow to mean that the operators were whining about being
over worked.
It is important to note that Garcia testified in English. He is
bilingual, with Spanish being his first and best language. Gar-
cia testified, and it is undisputed, that because of his bilingual
ability, the Employer’s Spanish speaking employees, of whom
there are a large number, have frequently used him as an inter-
preter in their conversations with the Employer’s English-
speaking supervisors. Marta Magallon Corona is one such
employee.
Magallon testified that periodically she was asked to act as a
“relief team lead,” when the regular team leads were absent,
especially on the weekends. She was unhappy performing
these duties as she believed she had not been adequately trained
for the job, it was too much responsibility, especially on the
weekends when the supervisors were not scheduled to work,
and because she was inadequately compensated for performing
the work. In mid-May she had approached her supervisor, Ray
Buchanan, about her concerns, but he had not responded posi-
tively. About 2 weeks later, Magallon asked Garcia to interpret
for her as she tried again to approach Buchanan regarding her
concerns.
The testimony of Garcia and Magallon is essentially the
same regarding the conversation with Buchanan. As Buchanan
did not testify regarding this conversation, the testimony of
Garcia and Magallon is unrebutted. During the conversation,
Magallon spoke in Spanish, Buchanan spoke in English, and
Garcia acted as an interpreter. Magallon expressed her reasons
for no longer wanting to perform the duties of relief team lead.
However, Buchanan was unmoved, essentially informing her
that he was the supervisor and that she must perform the work
assigned to her. At some point in the conversation, Buchanan
apparently became loud, and Garcia asked him why he was so
angry, why he was yelling, and why he was treating Magallon
badly. Buchanan did not answer orally, but turned his back on
the employees after giving Garcia an aggressive stare. With
that gesture, the meeting ended. In any event, it is undisputed
PORTOLA PACKAGING, INC. 1325
that Garcia kept his temper, never raised his voice, used profan-
ity, or called Buchanan names.
The following day, Buchanan called Magallon to a meeting
in the conference room. Also present were Production Manag-
er Tim DeCrow and Human Resource Manager Chris
McClanahan. Magallon spoke in Spanish and English, Bu-
chanan and DeCrow in English, and McClanahan, who is bilin-
gual, interpreted when necessary. McClanahan informed
Magallon that they were going to talk about the previous day’s
incident. During the conversation that followed, Magallon and
the managers discussed her objections to continuing to perform
the duties of the relief team lead. DeCrow tried to persuade
Magallon to retain the position, telling her that she was a smart,
hard worker with a lot of potential. He reminded her that the
Respondent had invested a lot of time in her training and asked
her to carefully consider the decision. However, Magallon
continued to insist that she did not want the additional work and
responsibility. Ultimately, it was agreed that Magallon would
continue to perform the job of relief team lead only until a re-
placement could be trained.
This aspect of the meeting is not disputed. Testimony is at
variance, however, concerning two other alleged subjects of the
conversation, namely employees’ interpreting for each other,
and employee discussions about wages and the meeting itself.
According to Magallon, McClanahan told her that Buchanan
had said that Garcia had “disrespected” him the previous day.
She was further told that for that reason, she was not allowed to
use Garcia or any other coworker as an interpreter. When she
protested that employee interpreting was a regular practice at
the plant, one always permitted, she was informed that from
now on none of the employees could use coworkers as inter-
preters, and that in the future Chris McClanahan would do all
the interpreting between workers and supervisors.
Further, according to Magallon, when she complained about
the payment that she received for working as a relief team lead,
she was told it was the same payment that other employees
received when they filled in as relief team leads.6 She disputed
that contention, claiming that she had spoken to fellow employ-
ees who had told her otherwise. Magallon contends that at that
point in the conversation McClanahan told her that she was not
permitted to talk about salaries with other employees or to see
the salaries of other employees. Also, McClanahan is alleged
to have told her that anything discussed in the conference room
meeting needed to stay there, and Magallon was not permitted
to talk with anyone outside the room about the contents of the
meeting.
The management witnesses denied that coworker interpret-
ing was even a topic of discussion at the meeting, or that there
had been any mention of the previous day’s meeting where
Garcia had acted as an interpreter. Further, the Respondent
contends that there is no such prohibition, and that coworkers
have continued to act as interpreters for Spanish-speaking em-
6 According to the Respondent, an employee who substitutes tempo-
rarily for an absent higher-paid employee is paid at the higher rate, but
only for the period of time that the substitute performs the work of the
absent employee.
ployees when having discussions with English-speaking super-
visors.
DeCrow testified that when Magallon indicated that she had
spoken with coworkers about their salaries, he told her that he
had been receiving complaints from other workers who had
been “shaken down” by her about their wages, and they felt
uncomfortable with her questions. He testified that he went on
to tell Magallon that if an employee wanted to have a conversa-
tion with her about his/her wages that it was fine for her to do
so, but that if an employee did not want to discuss wages with
her, that she should not pursue the matter. All three managers
also testified that Magallon was not told that the meeting was
confidential or that she should not discuss its contents with
coworkers.
1. Coworkers act as interpreters
The General Counsel alleges in complaint paragraph 5(b)(1),
as amended in the Second Motion to Amend Complaint (GC
Exh. 26), that in mid-May 2011, Chris McClanahan, Ray Bu-
chanan, and Tim DeCrow created more onerous working condi-
tions for [Magallon] and other employees by refusing to allow
them to have their coworkers act as interpreters during discus-
sions with the Respondent. In addressing this issue it is neces-
sary for me to make certain credibility determinations as there
are significant variances between the testimonies of the three
management officials on the one hand and Magallon on the
other hand.
I simply do not believe that the managers did not bring up
the events of the previous day as they involved Buchanan and
Garcia. From the credible testimony of Garcia and Magallon,
unrebutted by Buchanan, that supervisor had been visibly upset
by the incident. It is inherently plausible and reasonable to
credit Magallon who testified that at the beginning of the meet-
ing McClanahan mentioned that Buchanan felt that Garcia had
“disrespected” him the previous day. Further, it is logical to
conclude that the Respondent supported its supervisor, Buchan-
an, by McClanahan telling Magallon that because of Garcia’s
disrespectful actions of the previous day, that Garcia could no
longer act as an interpreter for Magallon.
However, I do not credit Magallon’s further testimony that
she was told that henceforth, coworkers could no longer act as
interpreters for fellow employees, and that only Chris
McClanahan would be able to interpret for Spanish-speaking
employees in conversations with English-speaking managers. I
believe that Magallon was simply mistaken, magnifying the
Respondent’s position prohibiting her from using Garcia as an
interpreter into a general prohibition from using any coworker
as an interpreter.
The Respondent takes the position that coworkers have con-
tinued to be used as interpreters, and there appears to be unre-
butted evidence to support this position. Tim DeCrow testified
that only 1 day before his appearance at the hearing, he held a
production meeting where a bilingual maintenance technician
was used to interpret what a Spanish-speaking employee was
saying. Further, employee Herlinda Cervantes testified that
when she speaks with Ray Buchanan or other managers that she
sometimes uses fellow employee “Cecilia” to interpret for her.
Accordingly, I believe that counsel for the General Counsel has

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1326
failed to prove that the Respondent ever established a general
rule prohibiting employees from using coworkers as interpret-
ers in conversations with English-speaking managers, or that
Magallon was told any such thing.
However, as I have already stated, I do believe that Magallon
was told by Chris McClanahan that she could no longer use
Garcia as an interpreter because he had disrespected Buchanan
the previous day when acting as an interpreter for Magallon.
The question remains whether this constitutes an unfair labor
practice. I do not believe that it does.
Both Garcia and Magallon testified that Garcia was acting as
an interpreter for Magallon during her conversation with Bu-
chanan. He was not acting as her advocate, witness, or even
supportive coworker. Even at the end of their conversation
when Buchanan got mad and turned his back on the employees
and raised his voice, it was Magallon who was speaking her
mind, not Garcia. She testified that she “asked Mr. Garcia to
ask him [Buchanan] why was he mad, why was he turning his
back on us.” Although there were further words exchanged, it
is clear to me that Garcia was merely acting as an interpreter,
rather than going to see Buchanan because he shared common
concerns with Magallon. In fact, Magallon’s concerns had
nothing to do with Garcia. She was unhappy functioning as a
relief team lead. Garcia was a maintenance technician, not
supervised by Buchanan, and with no work-related connection
to Magallon’s complaints.
Counsel for the General Counsel has not cited any Board or
court authority for the proposition that when an employee acts
as a translator or interpreter for another employee in a conver-
sation with management where only the employee who needs
an interpreter has work-related complaints that those employees
are engaged in protected concerted activity. I know of no such
authority.7 An interpreter really functions only as a recording
and translating device, intended merely to record the precise
words of the speakers, and then to translate those precise words
into the language of the listeners. Such a person is not speaking
his or her own mind, but the translated words of the speaker.
I conclude that neither Magallon nor other employees were
prohibited from using coworkers as interpreters in conversa-
tions with management, but at most Garcia was prohibited from
functioning in that capacity.8 I see no credible probative evi-
dence that such action was taken because of any protected ac-
tivity that Garcia may have engaged in, and I do not believe
that Garcia and Magallon were engaged in protected concerted
activity when he interpreted for her with Buchanan. Concomi-
tantly, the Respondent was not creating “more onerous working
conditions” for employees because of their protected concerted
7 I do not believe that the cases or law review article cited by counsel
for the General Counsel in her posthearing brief support the General
Counsel’s position that the conduct engaged in by Garcia and Magallon
constituted protected concerted activity. (Republic Aviation Corp., 324
U.S. 793, 804–805 (1945); Beth Israel Hospital v. NLRB, 437 U.S. 483,
491 (1978); Caesar’s Palace, 336 NLRB 271, 272 fn. 6 (2001), quoting
Jeannette Corp., 532 F.2d 916, 918 (3d Cir. 1976); Weinstein, Lauren
M., The Role of Labor Law in Challenging English-only Policies, 47
Harvard Civil Rights-Civil Liberties Law Review 219 (2012)).
8 There is no contention or evidence that without Garcia there were
insufficient bilingual employees to act as interpreters.
activity. Accordingly, I shall recommend to the Board that the
allegation in paragraph 5(b)(1), as set forth in the Second Mo-
tion to Amend the Complaint (GC Exh. 26.) be dismissed.
2. Rule prohibiting employees from
discussing wages; and
3. Rule prohibiting employees from discussing
meetings held with management
The General Counsel alleges in complaint paragraph 5(b)(2),
as set forth in the Second Motion to Amend the Complaint (GC
Exh. 26), that in mid-May 2011, the Respondent through
McClanahan, Buchanan, and DeCrow orally promulgated an
overly-broad and discriminatory rule prohibiting employees
from discussing their wages and those of other employees with
each other. Further, the General Counsel alleges in paragraph
5(b)(3), as set forth in the Second Motion to Amend the Com-
plaint, that at the same time the three managers orally promul-
gated an overly-broad and discriminatory rule prohibiting em-
ployees from discussing with other employees what occurred in
meetings with management.
These allegations arises from the meeting between the three
managers and Magallon where they discussed her desire to no
longer serve as a relief team lead. As was set forth above, one
of Magallon’s reasons for wanting to relinquish the position
was her feeling that she was not being adequately compensated
for the extra work. It is undisputed that she expressed this feel-
ing to the managers, and also her belief that other employees
who preformed such relief duties received greater compensa-
tion. However, the witnesses disagree as to what was discussed
next.
According to Magallon, when she complained about the
payment that she received for working as a relief team lead, she
was told it was the same payment that other employees re-
ceived when they filled in as relief team leads. She disputed
that contention, claiming that she had spoken to fellow employ-
ees who had told her otherwise. Magallon contends that at that
point McClanahan told her that she was not permitted to talk
about salaries with other employees or to see the salaries of
other employees. Also, McClanahan is alleged to have told her
that anything discussed in the conference room meeting needed
to stay there, and Magallon was not permitted to talk with any-
one outside the room about the contents of the meeting.
DeCrow testified that when Magallon indicated that she had
spoken with coworkers about their salaries, he told her that he
had been receiving complaints from other workers who had
been “shaken down” by her about their wages, and they felt
uncomfortable with her questions. He testified that he went on
to tell Magallon that if an employee wanted to have a conversa-
tion with her about his/her wages that it was fine for her to do
so, but that if an employee did not want to discuss wages with
her, that she should not pursue the matter. McClanahan’s tes-
timony was in conformity with that of DeCrow, with the addi-
tion that McClanahan testified that Magallon had said that she
understood and that she “wasn’t badgering anybody or giving
anyone a hard time.” All three managers also testified that
Magallon was not told that the meeting was confidential or that
she should not discuss its contents with coworkers.

PORTOLA PACKAGING, INC. 1327
Regarding the allegations that the managers told Magallon
that she must not discuss wages with other employees and that
she must keep the contents of their meeting confidential, I cred-
it Magallon. As counsel for the General Counsel pointed out in
her posthearing brief, there is a long line of Board cases stand-
ing for the proposition that the testimony of a current employee,
which is adverse to her employer, should be viewed favorably
as opposed to the self–interest testimony of a supervisor. This,
of course, is nothing more than a rebuttable presumption, which
is subject to the facts in each situation. See Samaritan Medical
Center, 319 NLRB 392, 396 fn. 12 (1995); Hi-Tec Cable Corp.,
318 NLRB 280, 295 (1995), enf. granted in part, denied in part
128 F.3d 271 (5th Cir. 1997); Gold Standard Enterprises, 234
NLRB 618 (1978); D & H Mfg. Co., 239 NLRB 393, 396
(1978). However, in the case before me, I am unaware of any
reason to conclude that the presumption that Magallon, a cur-
rent employee of the Respondent, testified credibly has been
rebutted.9
The collective testimony of the three managers regarding this
matter simply does not have the ring of authenticity to it. I
doubt that in the course of scolding Magallon for talking about
wages with her fellow employees, DeCrow took the time to
explain to her a distinction that he was allegedly drawing be-
tween discussing wages with willing employees and pressuring
unwilling employees to disclose such information. Rather, this
seems like something the managers concocted after the charges
were filed in an effort to make their admonition to Magallon
sound lawful.
Further, the Respondent furnished no specific information
regarding DeCrow’s claim that he had received complaints
from employees who allegedly reported that Magallon was
pressuring them to give her their wage rates. Had such com-
plaints actually been made, DeCrow should have been in a
position to testify as to the names of those complaining em-
ployees, and the Respondent should have offered their testimo-
ny at trial. The Respondent’s total failure to offer such evi-
dence, which one would logically assume would be done if
such evidence existed, creates an adverse inference that such, in
fact, does not exist.10 This constitutes further evidence of the
incredible nature of the managers’ testimony.
While DeCrow and McClanahan testified that DeCrow was
the manager making the statements in question to Magallon, it
is of no particular importance which of the three managers
actually spoke the words. Magallon seemed to testify that
McClanahan was speaking. However, she may have been con-
fused as to whose words these were, as McClanahan was serv-
ing as the Spanish-language interpreter and may only have been
translating for DeCrow. DeCrow, as production manager, was
a higher ranking supervisor than McClanahan, who was the
human resources manager. But, in any event, it is immaterial
9 It is axiomatic that a witness may be found credible regarding one
issue, while at the same time found incredible regarding another issue.
10 See International Automated Machines, 285 NLRB 1122, 1122–
1123 (1987), enfd. 861 F.2d 720 (6th Cir. 1988) (“. . . when a party
fails to call a witness who may reasonably be assumed to be favorably
disposed to the party, an adverse inference may be drawn regarding any
factual question on which the witness is likely to have knowledge”).
whether it was McClanahan or DeCrow speaking the words in
question, as the Respondent is responsible for the unlawful
statements of its supervisors.
Having concluded that either DeCrow or McClanahan told
Magallon that she was prohibited from talking with other em-
ployees about their wages, I also find that they told her that the
matters being discussed at the meeting were to be kept confi-
dential and not shared with other employees. It is logical that
such was the case as the supervisors’ admonition that Magallon
must keep these matters confidential was a natural extension of
the prohibition against talking with other employees about their
wages. It naturally fits in the context of their conversation.
Having determined that these statements, as testified to by
Magallon, were made by the supervisors, I must also determine
whether they constitute unfair labor practices. I find that they
do.
In determining whether the existence of specific work rules
violate Section 8(a)(1) of the Act, the Board has held that, “the
appropriate inquiry is whether the rules would reasonably tend
to chill employees in the exercise of their Section 7 rights.”
Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203
F.3d 52 (D.C. Cir. 1999). Further, where the rules are likely to
have a chilling effect on Section 7 rights, “the Board may con-
clude that their maintenance is an unfair labor practice, even
absent evidence of enforcement.” Id. See also Blue Cross-Blue
Shield of Alabama, 225 NLRB 1217, 1220 (1976).
The Board has further refined the above standard in Lutheran
Heritage Village-Livonia, 343 NLRB 646, 646 (2004), by cre-
ating a two-step inquiry for determining whether the mainte-
nance of a rule violates the Act. First, if the rule expressly
restricts Section 7 activity, it is clearly unlawful. If the rule
does not, it will none-the-less violate the Act upon a showing
that: “(1) employees would reasonably construe the language to
prohibit Section 7 activity; (2) the rule was promulgated in
response to union activity; or (3) the rule has been applied to
restrict the exercise of Section 7 rights.” Id. at 647; See North-
western Land Services, Ltd., 352 NLRB 744 (2009) (applying
the Board’s standard in Lutheran Heritage Village-Livonia,
supra at 647).
It is basic horn book law that employees are engaged in law-
ful protected concerted activity when they discuss among them-
selves issues relating to wages, hours, and working conditions.
An employer violates the Act when it attempts to prevent em-
ployees from engaging in protected concerted activities by
prohibiting employees from discussing matters such as wage
rates, or prohibits employees from discussing such matters as
are raised at meetings with management officials.
Through the actions of its supervisors in mid-May 2011, the
Respondent was orally promulgating a rule prohibiting Marta
Magallon, and other employees, from discussing their wage
rates with each other; and was also orally promulgating a rule
that served to prohibit Magallon, and other employees, from
discussing those matters that had just been raised by manage-
ment with Magallon. The rules were overly-broad and discrim-
inatory as on their face they restrict the exercise of Section 7
rights. Further, those rules would undoubtedly have a chilling
effect on the willingness of employees to engage in Section 7
activity. Lutheran Heritage Village-Livonia, supra.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1328
Accordingly, I conclude that by the actions of its supervisors,
the Respondent has violated Section 8(a)(1) of the Act by orally
promulgating overly-broad and discriminatory rules prohibiting
employees from discussing their wages with each other, and by
prohibiting employees from discussing with each other what
occurred at meetings with supervisors, all as alleged in para-
graphs 5(b)(2) and (3), as set forth in the Second Motion to
Amend Complaint.
4. Rule prohibiting employees from meeting
in groups with managers
The General Counsel alleges in complaint paragraph 5(c)
that since April 21, 2011, the Respondent, through Christopher
McClanahan, has orally promulgated an overly-broad and dis-
criminatory rule prohibiting employees from presenting con-
certed complaints to him. McClanahan, the safety and human
resource manager, holds monthly safety meetings in the plant
for all employees. Each month a different safety topic is taken
up during meetings conducted on each shift. Past subjects have
included fall protection, hazardous, communications, and many
others. McClanahan testified that at these meetings he encour-
ages employee feedback, and often will receive and answer
questions on diverse subjects concerning such matters as days
off, vacations, workloads, and other work-related subjects.
This testimony was not rebutted by other witnesses.
McClanahan further testified that at the end of these safety
meetings he would typically add that “if there is anybody that
has a question or concern that they are embarrassed to bring up
in front of everyone else, feel free to come speak with me, my
door is always open.” While acknowledging that such a state-
ment was made by McClanahan, employees Marta Magallon,
Evangelina Villegas, and Alicia Martinez testified that
McClanahan also said that while his door was always open to
hear complaints, “that employees should come by themselves
and not in groups.” Allegedly, such statements by McClana-
han, or similar statements that employees should not come to
see him in groups of two or three, were made by him at safety
meetings held in May and June 2011. However, employee
Christina Solano attended such meetings and denied hearing
any statement from McClanahan limiting the number of em-
ployees who could approach him with complaints.
I agree with counsel for the Respondent’s comment in his
posthearing brief that it would be “inherently illogical” for
McClanahan to solicit questions from employees at group
meetings regarding work-related matters that he would not also
be willing to entertain in his office when approached by more
than one employee. If McClanahan was willing to discuss em-
ployee concerns in a group setting, why would he be reluctant
to do so in his private office? It makes no sense that he would
have any such reservation.
It seems likely that employees Magallon, Villegas, and Mar-
tinez are simply mistaken or confused about what McClanahan
actually said. Perhaps they misunderstood McClanahan’s
statement that employees who were embarrassed to bring up
matters in front of other employees could come and speak with
him in his office to mean that employees must come alone to
see him. In any event, I credit the testimony of McClanahan
and Solano because it is logical and inherently probable.
I conclude that McClanahan never said that employees could
only come alone to see him with complaints, and, thus, did not
promulgate an overly-broad and discriminatory rule prohibiting
employees from presenting him with concerted complaints.
Accordingly, I shall recommend to the Board that complaint
paragraph 5(c) be dismissed.
5. Threats for engaging in protected concerted activity
It is alleged in complaint paragraphs 5(d)(1) and (2) that on
about October 5, 2011, the Respondent, through Tim DeCrow,
threatened employees with discharge and/or with unspecified
reprisals for engaging in concerted activities. It is further al-
leged in complaint paragraph 5(k) that on about October 4,
2011, the Respondent issued a written warning to Jorge Garcia,
and in paragraph 5(l) that on about October 5, 2011, the Re-
spondent issued Garcia another written warning. It is the Gen-
eral Counsel’s contention that all these actions were taken
against Garcia by the Respondent, through Production Manager
Tim DeCrow, in the course of a 2-day period because of Gar-
cia’s protected concerted activity.
As is set forth in more detail earlier in this decision, Garcia
had engaged in protected concerted activities with his cowork-
ers. In mid-May 2011, he had spent time in the lunchroom
when on break on a daily basis discussing with production team
members and maintenance technicians work-related com-
plaints. In particular, he had discussed with the “operators”
their complaints about being over worked and about Supervisor
Ray Buchanan being unresponsive to their needs.
Garcia brought the complaints of the production team mem-
bers to the attention of Production Manager Tim DeCrow.
Garcia testified that he told DeCrow that “the operators, they
were saying they have too much work and [it’s] hard for them
to handle.” In response, DeCrow allegedly said that he was
“tired of hear[ing] the operators cry, wah, wah, wah.” Garcia
testified that he understood DeCrow to mean that the operators
were whining about being over worked. As DeCrow never
specifically denied having had this conversation with Garcia, I
conclude that it did occur as testified to by Garcia.
Also, in this same May 2011 time period, Garcia was having
trouble with the Respondent’s Enterprise Asset Management
[EAM] System. As set forth in detail above, the EAM System
is designed to keep track of all the hours worked by the mainte-
nance technicians, showing how their time was spent, and also
to keep a record of the various parts utilized by the maintenance
technicians in the course of repairing machinery. Garcia, as
with some of the other maintenance technicians, was having
difficulty learning how to use the system. As was discussed
above, the Respondent, through its Maintenance Manager Paul
Rose, made considerable efforts to train the maintenance tech-
nicians in the new EAM System. However, despite these ef-
forts some of the technicians, including Garcia, seemed slow or
reluctant to achieve the desired results.
Because of Garcia’s inability to achieve the desired results
using the EAM System, Rose required him to sign a document
entitled “EAM Training Acknowledgement Form.” The docu-
ment was dated May 6, 2011. It lists certain “Specific Expecta-
tions” of the employee, those requirements being the reporting
of at least 7 out of 8 hours worked and listing those parts used
PORTOLA PACKAGING, INC. 1329
while repairing machinery. The document stressed the im-
portance of these reporting requirements, and the last sentence
read as follows: “Any failure to meet the specific expectations
outlined above will follow PPI’s employee performance disci-
plinary procedures up to and including termination.” (GC Exh.
16.) According to Garcia, Rose never informed him that this
document constituted a verbal reprimand, and the first step in
the Respondent’s progressive disciplinary process. Apparently,
Rose required the other maintenance technicians who were not
satisfying the EAM reporting requirements to also sign this
form, as counsel for the General Counsel does not contend that
the mere signing of this form constituted disparate treatment
towards Garcia. The requirement that Garcia sign the form is
not alleged in the complaint as an unfair labor practice.
As he signed the form, Garcia added contain comments at
the bottom. Those comments read as follows: “We need a lot
more training with the system EAM. A lot of the equipment
don’t [sic] have the location and it is hard to find it in the sys-
tem. Also, the supervisors need to make the work orders so
when we can’t close after work is done.” (GC Exh. 16.) He
testified that his concerns were shared by other maintenance
technicians, however, there is no evidence that Garcia spoke
with fellow employees about these specific complaints. Never-
theless, I believe that in writing his comments on the form,
Garcia was engaged in protected concerted activity. His com-
ments should be construed to be the efforts of an individual
employee seeking “to initiate or induce or to prepare for group
action,” as well as that of an individual employee “bringing
truly group complaints to the attention of management.” Meyer
Industries, Inc., 281 NLRB 882 (1986), affd. 835 F.2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988); NLRB v.
City Disposal Systems, Inc., 465 U.S. 822, 831 (1984) (affirm-
ing the Board’s power to protect certain individual activities
and citing as an example “the lone employee” who “intends to
induce group activity”).
While it is clear that around May 2011, Garcia engaged in
protected concerted activities with other employees, and alone
but also on behalf of other employees, it remains to be seen
whether his activities were in any way related to the subsequent
actions of management. I will address each of the four allega-
tions of unlawful conduct towards Garcia in chronological or-
der.
Complaint paragraph 5(k) alleges that on October 4, 2011,
the Respondent issued Garcia a written warning. He did in fact
receive such a warning on a “Disciplinary Process Form” dated
October 4 and issued by his immediate supervisor, Paul Rose.
(GC Exh. 17.) The discipline form makes reference to a prior
“verbal reminder” dated May 6, 2011. This prior reminder was
the “EAM Training Acknowledgement Form” mentioned
above. (GC Exh. 16.) While counsel for the General Counsel
in her posthearing brief argues that this EAM form “does [not
indicate] that it is a discipline, part of the progressive discipline
plan, or a verbal reminder,” that is not entirely accurate. The
last sentence reads: “Any failure to meet the specific expecta-
tions outlined above will follow PPI’s employee performance
disciplinary procedures up to and including termination.”
Therefore, I agree with counsel for the Respondent that for all
practical purposes the EAM form constituted a first warning to
Garcia.
A series of disciplinary warnings issued to Garcia over his
failure to train on the Respondent’s EAM System and to be-
come proficient in that system. As mentioned earlier, the EAM
System is a computer operated electronic system that is used to
track hours worked and parts used by maintenance technicians
given certain assignments to perform, in an effort to promote
the Respondent’s ability to manage its production operating
costs. The “warning” that Garcia received in the “EAM Train-
ing Acknowledgement Form” was for failing to record at least
7 of his 8 hours of employment in the system, and also for fail-
ing to record all parts used in making repairs. (GC Exh.16.)
In December 2010, Rose provided classroom training in the
EAM System to maintenance technicians, including Garcia.
Followup training was given in February. Every maintenance
technician was required to use the system, and all who failed to
do so received the same written acknowledgement form that
Garcia received. It is undisputed that Rose spoke with Garcia
numerous times about his failure to properly record information
into the system. However, during the hearing, Garcia testified
that his failure to use the system as required was solely because
he either did not receive adequate training, or was too busy
with his regular maintenance duties to train on the system.
As early as August 2011, Rose assigned all the maintenance
technicians in the plant the duty of completing seven skill as-
sessments to determine their skill levels relative to several dif-
ferent performance areas including pneumatics, electronics,
motor controls, and others. These assessments were intended to
identify subjects where individual maintenance technicians
would need more training. Rose scheduled each of the techni-
cians a designated time each week to use a dedicated computer
located in a plant conference room to complete the assessments
during working time. Garcia acknowledged at the hearing that
he was assigned to work on the assessments every Wednesday,
and testified that he did not work on the assessment after the
assignments were made. He testified that he told Rose that he
had “too much work and had no help,” so that he could not
leave the production floor. However, Rose told him that the
assessments must be done, and that he should perform them as
scheduled unless there was a priority need to make a repair.
Rose continued to talk with Garcia about not doing the as-
sessments. According to Rose’s unrebutted testimony, as of
October 1, 2011, only two technicians had failed to complete a
single assessment, namely Garcia and Bonito Deiparine.
Therefore, on October 4, Rose called both men into the confer-
ence room, presented them with nearly identical “Disciplinary
Process Forms,” and told them that they were receiving written
warnings because of their failures to complete the assessments
assigned in early August. He told them that their failure to
complete any of the assessments was unacceptable, and that
they must complete the assessments no later than November 1
or additional discipline would be imposed.
The Disciplinary Process Form that Garcia received indicat-
ed on its face that it constituted a “First Warning,” that a “Ver-
bal Reminder” had been given on May 6, 2011, that the unac-
ceptable performance was the failure to have completed any of
the seven assessments first assigned in early August, and that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1330
the expected improvement was “7 of 7 assessment tests com-
pleted by 11/01/11.” (GC Exh. 17.) The form was signed by
Christopher McClanahan, Paul Rose, and Garcia.
Counsel for the General Counsel argues in her posthearing
brief that Garcia was never given a deadline in which to com-
plete the assessments until he was given the written warning on
October 4, and she is suggesting that in some way this was
unfair. However, there is no probative, credible evidence that
Garcia was treated in a disparate fashion from any of the other
maintenance technicians. While Garcia testified that he thought
that one technician may have completed fewer assessments
than he had done, no evidence was offered to support this con-
tention. Further, I credit the testimony of Rose who testified in
a detailed, convincing manner, and whose testimony was sup-
ported by documentary evidence that Garcia did not complete
his first assessment until October 7, 2011, 3 days after he re-
ceived the written warning. (Emp. Exh.10.)
In my view, Garcia was disciplined for cause on October 4
when he received the “Disciplinary Process Form.” (GC Exh.
17.) He was given ample opportunity to receive training on the
EAM System, was repeatedly spoken to by Ross about the need
to complete the assessment tests in a timely fashion, was told to
take the training at the times scheduled unless he had a priority
repair to perform, and was not treated in a disparate fashion
from the other maintenance technicians.
The remaining three allegations of unlawful mistreatment of
Garcia by the Respondent (complaint pars. 5(d)(1), (2), and
5(l)) all occurred on the following day, October 5, 2011. How-
ever, it is necessary to first note that Garcia accepted an as-
signment to a “Go team” in August 2011. At that time,
DeCrow became his supervisor. As discussed above, a Go
team is made up of production employees, process technicians,
and maintenance mechanics, among other classifications. The
Go team members are assigned to a specialized team familiar
with a particular set of machines. These employees are distin-
guished from their coworkers who work on a number of differ-
ent types of machines during one of three designated work
shifts. Garcia accepted the position on the Go team because
those hours of work were better for him than the times of the
tradition shift to which he had previously been assigned.
It is the Respondent’s position that after being assigned to
the Go team, Garcia began to have significant performance
issues. Specifically, the Respondent documented four inci-
dents, which ultimately became the basis for a second discipli-
nary warning. In each of these four incidents, the General
Counsel argues that Garcia’s job performance was appropriate
under the circumstances. It is the receipt of this second written
warning that the General Counsel contends was unlawful. (See
complaint par. 5(l).) These four alleged incidents of improper
performance are set forth in the “Disciplinary Process Form”
received by Garcia on October 5, 2011.
The four incidents reported on the Disciplinary Process Form
are: (1) an incident occurring on September 12–13 where Gar-
cia was unable to fix a mechanical problem for 2 days, causing
production delays, and requiring another maintenance techni-
cian to make the repair; (2) an incident on September 13 where
Garcia installed a valve backwards, destroying it and costing
the Employer $4000; (3) an incident on September 28 when
Garcia refused to follow the direction of his supervisor causing
a production delay; and (4) an incident occurring on September
30 when Garcia failed to answer his phone and report for work
to repair a machine over the course of two shifts, causing an-
other technician to be called to make the repair, resulting in a
production delay. (GC Exh. 18.) DeCrow testified that after
each incident he spoke with Garcia, told him what he had done
wrong, and at one point told him, regarding the Go team, that
“[i]f this is too much for you, let me know and we can put you
back on shift duty.” When asked by counsel for the General
Counsel why he gave Garcia this second written warning, ra-
ther than just making it a part of the first written warning issued
a day earlier, DeCrow responded logically that the two written
warnings involved totally different issues. Although Garcia
testified that he had not been spoken to after these incidents
occurred, I credit DeCrow. His testimony was detailed and had
the ring of authenticity about it. Certainly, these incidents were
of a sufficient magnitude to have warranted DeCrow’s immedi-
ate need to speak with Garcia about them.
Regarding each of the four incidents, Garcia testified that his
actions were reasonable under the circumstances and that he
had done nothing wrong. As a layman, unfamiliar with the
technical requirements of repairing presses, I am unable to
determine whether Garcia was at fault or not regarding the first
two incidents where production was delayed allegedly because
he was unable to repair machinery and had destroyed a valve
that he was trying to replace. However, I am able to analyze
the second two incidents, which I believe are illustrative of all
four.
According to the Respondent, incident three, which occurred
on September 28, involved Garcia’s refusal to follow direction
from Supervisor Ray Buchanan. Garcia testified about the
incident, and while he admitted that he failed to follow Bu-
chanan’s order to run a machine and instead went to lunch, he
contended that he did not follow Buchanan’s direction because
the machine needed 2 hours to warm up in order to avoid being
damaged. According to Garcia, when he went to get lunch,
Buchanan started the machine himself without waiting for it to
warm up, resulting in the color for the machine spilling all over
the floor. In any event, it seems to me that the salient point is
not whether the machine should have been started without first
warming up, but, rather, that Garcia ignored Supervisor Bu-
chanan’s order to start the machine and instead left for lunch.
This was an act of insubordination.
Incident four occurred on September 30, when Garcia was at
home and off from work. The Respondent requires its mainte-
nance technicians to be on-call and available to work an emer-
gency whenever necessary. During the night, when Garcia was
at home sleeping, a machine needed to be repaired, and super-
visors made a number of calls to Garcia’s personal cell phone
attempting to contact him and have him report to the plant to
make the necessary repairs. However, Garcia failed to answer
the calls. He testified that he did not hear the calls, apparently
because his phone was on vibrate. The Respondent ultimately
called in another maintenance technician who repaired the ma-
chine. In any event, Garcia admits that he failed to follow the
Respondent’s procedure and be available and “on-call” when
needed by the Respondent to report for work.
PORTOLA PACKAGING, INC. 1331
Concerning incidents three and four, it is clear that Garcia
violated the Respondent’s policies and procedures as he was,
respectively, insubordinate towards a supervisor, and was una-
vailable and not on-call when needed by the Respondent to
report for work. As such, the Respondent had a legitimate basis
for issuing a written warning to Garcia. Regarding incidents
one and two, while I am not able to determine the technical
issues involved, on the face of the Respondent’s complaints, I
can see no impropriety in the Respondent’s conclusion that
Garcia was either unable to make the repairs, or made them
improperly, causing lost production and damaging equipment.
In any event, it is important to stress that counsel for the Gen-
eral Counsel was unable to show that for any of these incidents
that Garcia was treated in a disparate fashion from other
maintenance technicians or that the stated reasons for the disci-
pline was a pretext.
As noted above, Garcia received this second Disciplinary
Process Form on October 5, 2011. (GC Exh. 18.) He was
called to a meeting in the human resource office where
DeCrow, McClanahan, and Rose were present. Garcia testified
that while DeCrow was giving him the written warning,
DeCrow told him that he was making too many mistakes. Ac-
cording to Garcia, DeCrow went on to say that he was “provok-
ing some other people for them to complain,” and that he “was
the kind of person that was not good to have around.” Alleged-
ly, DeCrow added that Garcia “was not good for the business.”
Garcia testified that in response he told DeCrow that he was not
provoking anyone, but just trying to pass information on to
management that he heard from the “operators” on the plant
floor. Garcia signed the written warring and then walked out of
the room.
However, Garcia was not happy with the receipt of the writ-
ten warning, believing that the discipline was not warranted.
He returned to talk with McClanahan, telling him that he want-
ed a copy of the warning. At the same time, Garcia indicated
he was not happy with the warning and, so, McClanahan
brought him to talk again with DeCrow. Garcia testified that he
told the two men that “some of these—that’s on the paper, I
believe is not true.” According to Garcia, he could see
DeCrow’s “temper change,” and DeCrow said, “Jorge, one
more warning and you’re no longer going to be at Portola.”
That ended the conversation and Garcia left the room.
All three management witnesses, DeCrow, McClanahan, and
Rose denied that DeCrow made the statements attributed to him
by Garcia. The Respondent contends that DeCrow merely told
Garcia that his performance had been poor and was getting
worse, with many mistakes having been made, and, therefore,
he was going to receive a written warning.
In this instance, I credit Garcia over the three supervisors.
Garcia’s version of the conversation was highly detailed, and,
as he told the story, I could see the emotional effect that testify-
ing about the incident was having on him. On the other hand,
the supervisors testified in a cold, detached way, which led me
to believe that their version of these events was fabricated.
Garcia’s testimony had the ring of authenticity about it, was
consistent, and inherently plausible. As I have already noted,
Garcia engaged in protected concerted activity with other em-
ployees in May 2011, when they discussed work-related com-
plaints in the lunchroom. He ultimately brought some of those
complaints to DeCrow. However, as I have already found,
DeCrow was less than sympathetic about hearing that the “op-
erators” felt they were overworked, saying that he was “tired of
hear[ing] the operators cry, wah, wah, wah.” Further, Garcia
was engaged in protected concerted activity on behalf of him-
self and the other maintenance technicians when on May 6,
2011, he wrote his complaints about the EAM System at the
bottom of the EAM Training Acknowledgement Form that he
received. (GC Exh. 16.)
The statements attributed to DeCrow on October 5 by Garcia
are consistent with DeCrow’s earlier statements about the oper-
ators’ crying. He obviously had no patience with complaining
employees or those who were dissatisfied with their working
conditions. Further, I believe the Board’s policy of giving spe-
cial credence to the testimony of a current employee who testi-
fies against the financial interests of his employer should cer-
tainly apply to Garcia. See House of Good Samaritan, 319
NLRB 392, 396 fn. 12 (1995) (citing Georgia Rug Mills, 131
NLRB 1304 (1961). While I have not uniformly found Gar-
cia’s testimony credible, I believe that in this instance it is
clearly so.
Having found Garcia’s testimony in this instance credible, I
find that on October 5, 2011, the Respondent, through DeCrow,
threatened Garcia because of his concerted activity when
DeCrow told Garcia that he was causing other employees to
complain, was not good to have around, and was not good for
business. Accordingly, I find that the Respondent, through
DeCrow, threatened Garcia with unspecified reprisals for en-
gaging in protected activity in violation of Section 8(a)(1) of
the Act, as alleged in complaint paragraph 5(d)(2). Further, I
find that on that same date, the Respondent, through DeCrow,
threatened Garcia because of his concerted activity when
DeCrow told Garcia that with one more warning, he would no
longer be working for the Employer. Accordingly, I find that
the Respondent, through DeCrow, threatened Garcia with dis-
charge for engaging in protected activity in violation of Section
8(a)(1) of the Act, as alleged in complaint paragraph 5(d)(1).
These violations establish that the Respondent, through
DeCrow, harbored animus towards its employees who engaged
in protected concerted activity.
It is now necessary to determine the Respondent’s motive in
issuing the two written disciplinary warnings to Garcia on Oc-
tober 4 and 5, 2011. (GC Exhs. 17 & 18.) In Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), the Board announced the follow-
ing causation test in all cases alleging violations of Section
8(a)(3) or violations of 8(a)(1) turning on employer motivation.
First, the General Counsel must make a prima facie showing
sufficient to support the inference that protected conduct was a
“motivating factor” in the employer’s decision. This showing
must be by a preponderance of the evidence. Then, upon such
a showing, the burden shifts to the employer to demonstrate
that the same action would have taken place even in the ab-
sence of the protected conduct. The Board’s Wright Line test
was approved by the United States Supreme Court in NLRB v.
Transportation Corp., 462 U.S. 393 (1983).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1332
In the matter before me, I conclude that the General Counsel
has made a prima facie showing that Garcia’s protected con-
certed activity was a motivating factor in the Respondent’s
decision to issue to him two written disciplinary warnings. In
Tracker Marine, L.L.C., 337 NLRB 644 (2002), the Board af-
firmed the administrative law judge who evaluated the question
of the employer’s motivation under the framework established
in Wright Line. Under the framework, the judge held that the
General Counsel must establish four elements by a preponder-
ance of evidence. First, the General Counsel must show the
existence of activity protected by the Act. Second, the General
Counsel must prove that the Respondent was aware that the
employee had engaged in such activity. Third, the General
Counsel must show that the alleged discriminatee suffered an
adverse employment action. Fourth, the General Counsel must
establish a link, or nexus, between the employee’s protected
activity and the adverse employment action. In effect, proving
these four elements creates a presumption that the adverse em-
ployment action violated the Act. However, more recently the
Board has stated that, “Board cases typically do not include [the
fourth element] as an independent element.” Wal-Mart Stores,
352 NLRB 815, fn.5 (2008) (citing Gelita USA Inc.,352 NLRB
406, 407, fn. 2 (2008)); SFO Good-Nite Inn, LLC, 352 NLRB
268, 269 (2008); Also see Praxair Distribution, Inc., 357
NLRB 1048 fn. 2 (2011). In any event, to rebut the presump-
tion, the Respondent bears the burden of showing the same
action would have taken place even in the absence of the pro-
tected conduct. See Manno Electric, Inc., 321 NLRB 278, 280
fn. 12 (1996); Farmer Bros. Co., 303 NLRB 638, 649 (1991).
It is axiomatic that Section 7 of the Act gives employees the
right to communicate with each other regarding their wages,
hours, and working conditions. Further, the Board has consist-
ently held that the communication between employees “for
nonorganizational protected activities are entitled to the same
protection and privileges as organizational activities.” Phoenix
Transit Systems, 337 NLRB 510 (2002) (citing Container Corp.
of America, 244 NLRB 318, 322 (1979)).
As I have already found, there is no doubt that Garcia was
engaged in protected concerted activity in May 2011, when he
discussed work-related concerns with fellow employees in the
lunchroom at the plant, and when he brought operator com-
plaints about being over worked to the attention of DeCrow.
Further, he engaged in protected concerted activity on behalf of
himself and the other maintenance technicians when on May 6
he wrote negative comments about the EAM System training
on the bottom of the EAM Training Acknowledgement Form
(GC Exh. 16) that he signed and gave to Paul Rose.
Obviously, the Respondent was aware of Garcia’s protected
concerted activity as Production Manager DeCrow was the
recipient of Garcia’s complaints regarding the operators being
overworked, and Maintenance Manager Rose was the recipient
of Garcia’s complaints regarding the EAM System training for
maintenance technicians.
The two “Disciplinary Process Forms” (written warnings)
received by Garcia on October 4 and 5, 2011, respectively,
were clearly adverse employment actions. These were serious
matters under the Respondent’s progressive discipline system,
as the second written warning (the one dated October 5) indi-
cates on its face that the next action was “Termination.”
Finally, counsel for the General Counsel has established a
connection or nexus between the discipline and Garcia’s pro-
tected activity by showing that the Respondent, through
DeCrow, harbored animus towards Garcia because of those
activities. As noted above, I have found that on October 5, the
date of the second written warning, and only 1 day after the
issuance of the first written warning, DeCrow orally threatened
Garcia with discharge and with other unspecified reprisals be-
cause he had engaged in protected concerted activity. I have
already found that these threats constituted violations of the
Act. Certainly, the timing of the oral threats in connection with
the issuance of written warnings is support for the proposition
that the Respondent was at least to some extent motivated to
issue the written warnings in question because Garcia had en-
gaged in protected concerted activity.
Having found that the General Counsel has established a
prima facie case that the Respondent was motivated to issue the
two written warnings to Garcia, at least in part, because of his
protected concerted activity, the burden now shifts to the Re-
spondent to show that it would have taken the same action ab-
sent the protected conduct. Senior Citizen Coordinating Coun-
sel of Riverbay Community, 330 NLRB 1100 (2000); Regal
Recycling, Inc., 329 NLRB 355 (1999). The Respondent must
persuade by a preponderance of the evidence. Peter Vitalie
Co., 310 NLRB 865, 871 (1993). I am of the view that the
Respondent has met this burden.
Earlier in this decision, I analyzed the two written warnings
received by Garcia on October 4 and 5, 2011, respectively. For
the reason that I noted above at length, I concluded that the two
warnings were not a pretext, did not establish disparate treat-
ment, and appeared to constitute an effort by the Respondent to
discipline Garcia for legitimate reasons. Garcia was far from a
model employee. He failed to take timely assessment training
on the EAM System despite repeated efforts on the part of
Maintenance Manager Rose to assist him in doing so. For this
he received the first written warning on October 4. Garcia
committed numerous breaches of the Respondent’s policies and
procedures, including insubordination, failure to respond to an
“on-call” contact, and questionable machine repair efforts,
which on their face appear to have resulted in lost production
and significant replacement costs for the Respondent. For this
he received the second written warning on October 5. These
were not the actions of an employee who was interested in per-
forming his job duties to the best of his ability. Such miscon-
duct on the part of an employee, whether Garcia or any other
maintenance technician, would likely have resulted in similar
disciplinary action, even where the employee had engaged in
no protected conduct.
Accordingly, based on the above, I conclude that the Re-
spondent has met its burden of proof and established by a pre-
ponderance of the evidence that Garcia was issued the two
written warnings on October 4 and 5, 2011, respectively, for
cause. As such, the Respondent has rebutted the General
Counsel’s prima facie case and shown that it would have disci-
plined Garcia even in the absence of his having engaged in
PORTOLA PACKAGING, INC. 1333
protected conduct. Therefore, I shall recommend to the Board
that complaint paragraphs 5(k) and (l) be dismissed.
C. Union Activity
It appears that the concerted activity engaged in by certain of
the Respondent’s employees eventually progressed into union
activity. Many of the Respondent’s employees remained dis-
satisfied with their working conditions and felt that manage-
ment was unresponsive to their concerns.
On November 1, 2011, the Union filed a petition for an elec-
tion with the Region. (GC Exh. 1(e).) On November 7, 2011, a
Stipulated Election Agreement was executed by the parties and
approved by the Regional Director. (Emp. Exh. 4.) That
agreement provided for an election among the following unit of
the Respondent’s employees:

Included: All full time and regular part-time production
workers including machine operators, sanitation, and packag-
ing employees employed by the Employer at its facility in
Tolleson, Arizona.

Excluded: All other employees including maintenance me-
chanics, shipping and receiving employees, quality control
employees, office clericals, managers, guards, and supervisors
as defined in the Act.

Following the Respondent’s notice that a representation peti-
tion had been filed, it hired a union-avoidance consulting firm,
LRI Consulting Services (LRI). The Respondent entered into a
contract with LRI on November 8, 2011. (GC Exh. 4.) Under
the terms of the contract, LRI agrees to provide “expert cam-
paign consulting with an on-site facilitator to communicate
your message directly to employees in employee meetings and
one-on-one.” (GC Exh. 4, p. 1 of the attached proposal.) One
of the three stated objectives in the contract is for the Respond-
ent to “win the NLRB election by as wide a margin as possible
or achieve a withdrawal of the petition, without meritorious
election objections or unfair labor practice charges.” (GC Exh.
4.) LRI dispatched Armando Talancon to the Tolleson plant
soon after the contract was signed to serve as the on-site facili-
tator.
Under the terms of the contract, LRI’s fee is $50,000 plus
expenses for the first 15 days of work, and $3000 for each day
thereafter. However, under the contract the bulk of these sums
are refundable should the Union be certified by the Board. (GC
Exh. 4.)
Talancon arrived at the Tolleson facility on November 8,
2011, and remained at the plant until 2 days prior to the elec-
tion, which was held on December 1. He speaks English and
Spanish and was formerly employed by a different local of the
United Food and Commercial Workers Union. Talancon testi-
fied that he has a contract with LRI, under which terms he is
paid expenses and a $50,000 fee for his work at the Respond-
ent’s facility. However, it is significant to note that according
to Talancon, he is only paid the $50,000 fee if the Union loses
the election. If the Union wins the election, then he only gets
his expenses, principally for travel, meals, and housing.11
11 The $50,000 sum is somewhat confusing as the LRI contract with
the Respondent provides for the payment of a fee in that amount, and
Talancon testified at length at the hearing. Preliminarily, I
would note that I did not find him to be a credible witness. He
made some highly incredible statements at the hearing. Talan-
con testified that LRI did not tell him what they wanted him to
do at the plant, and that he was not sent there to communicate
the Respondent’s message to their employees. He contends
that he is a “consultant,” sent to the facility merely to answer
the questions employees ask about the election, and to explain
the election process to them. He claimed that he had never seen
the contract between LRI and Portola before the hearing, and
despite the language of the contract promising that the “facilita-
tor” will communicate the Employer’s message to the employ-
ees, he testified that he did not communicate that message to
the employees. He argued that the Employer was responsible
for communicating its own message.
During examination by counsel for the General Counsel, Ta-
lancon seemed very uncomfortable, especially when testifying
about his role in the election campaign. He struggled to make
sense out of some really nonsensical contentions, and seemed
frequently uncertain as to what answer to give to counsel’s
questions. His discomfort was somewhat surprising, consider-
ing his educational and professional background. He testified
that he has attended law school, and has worked on labor rela-
tions issues, arbitrations, grievances, and contract negotiations
at different times on both the union and the employer side.
Frankly, I believe that his discomfort was the result of his being
totally unable to reconcile his contention that he was merely at
the plant to answer employee questions and to explain the elec-
tion process, with the terms of LRI’s contract with Portola,
which terms provided that the facilitator would present the
Employer’s case to the employees, with the stated objective of
defeating the Union in the election. As I have said, Talancon’s
testimony was simply incredible.
When he first arrived at the plant, Talancon held a meeting
with management where he sought to discover “what the prob-
lems were, [and] what threw up a flag to their employees to
seek to be represented by the UFCW.” The Employer provided
him with an office at the plant that he could use during his stay.
Thereafter, Talancon spent much of his time at the facility be-
tween November 10 and 18 meeting with small groups of em-
ployees. Obviously, he was authorized by the Respondent to
conduct these meetings, which were mandatory and held during
worktime.
Human Resource Manager Chris McClanahan arranged a
schedule for groups of three or four employees at a time to
meet with Talancon in the plant conference room. McClanahan
and/or Plant General Manager Tim Tyler came to the meetings
to introduce Talancon. Typically, they would introduce Talan-
con as someone who had previously worked as a union organ-
izer, and who had more knowledge than they did regarding the
Union and the election process. The employees were told that
the Employer had brought Talancon in to the facility to speak to
them, and that he was there to inform the employees about the
Talancon testified that his fee with LRI is for the same amount. Never-
theless, it is clear that the Respondent is only required to pay a fee to
LRI if the Union loses the election, and, similarly, LRI is only required
to pay a fee to Talancon if the Union is defeated.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1334
Union and to answer any of their questions. At least one em-
ployee, Evangelina Villegas, testified that she was told that
Talancon was there to speak for Portola. Following their intro-
ductions, Tyler and McClanahan would leave the meeting.
Talancon testified that following meetings with groups of
employees, that he meet with management officials and advised
them of the issues that employees were raising, principally that
there was a lack of respect for employees, that the Employer
seemed uninterested in their complaints, and that Supervisor
Ray Buchanan was particularly unresponsive to their needs.
During his testimony, Talancon admitted that he told employ-
ees that he “would let management know” of their complaints,
so that “[management] could try to fix things if they could. . . .”
In its answer to the complaint, the Respondent denied that
Talancon was an agent of the Respondent within the meaning
of Section 2(13) of the Act. I find this denial frivolous. It is
well established that the Board applies the common-law princi-
ples of agency when determining whether an individual is an
agent of the employer. Additionally, as stated in the Act, when
making a determination of agency, “the question of whether the
specific acts performed were actually authorized or subsequent-
ly ratified shall not be controlling.”
Apparent authority results from a manifestation by the prin-
cipal to a third party that creates a reasonable basis for the latter
to believe that the principal has authorized the alleged agent to
perform the acts in question. Southern Bag Corp., Ltd., 315
NLRB 725 (1994); See generally Great American Products,
312 NLRB 962, 963 (1993); Dentach Corp., 294 NLRB 924
(1989); Service Employees Local 87 (West Bay), 291 NLRB 82
(1988). The test is whether, under all the circumstances, the
employees “would reasonably believe that the employee in
question (the alleged agent) was reflecting company policy and
speaking and acting for management.” Waterbed World, 286
NLRB 425, 426–427 (1987). This test is satisfied when the
employee is held out as a conduit for transmitting information
from management to other employees. Cooper Industries, 328
NLRB 145, 145 (1999). Obviously, the “agent” can also be an
individual, other than an employee.
Typically, labor relations consultants or “facilitators” hired
by an employer to convey its message to employees are consid-
ered to be agents of the employer, and, thus, statements made
by them can be attributed to the employer. See DHL Express,
Inc., 355 NLRB 680, 698 (2010).
In the matter at hand, under the terms of the contract be-
tween the Employer and LRI, the facilitator, who is obviously
Talancon, is expected to communicate the Employer’s message
directly to employees in employee meetings and one-on-one.
(GC Exh. 4.) Thus, he becomes an actual agent of the Re-
spondent, appointed for the purpose of communicating on be-
half of the Employer with its employees. Further, Talancon
was invested with apparent authority as the Respondent,
through Supervisors Tyler and McClanahan, brought him into
meetings with small groups of employees, who were told that
he had been brought to the plant by Portola so that he might
answer their questions and explain the election process to them.
The only logical conclusion that those employees could reach
was that Talancon was representing the Employer and the inter-
ests of management. The Employer did nothing to refute that
impression. Therefore, the Employer was responsible for the
actions and statements of its agent, Talancon. Uniontown Hos-
pital Assn., 277 NLRB 1298, 1299 (1985).
1. The actions and statements of Armando Talancon
It is alleged in complaint paragraph 5(e)(1) that on about
November 10, 2011, Talancon unlawfully solicited employee
complaints and grievances, and promised the Respondent’s
employees increased benefits and improved terms and condi-
tions of employment if they rejected the Union as their collec-
tive-bargaining representative. Further, it is alleged in com-
plaint paragraph 5(e)(2) that during the same period of time,
Talancon threatened employees with discharge if they chose the
Union as their collective-bargaining representative. Also, it is
alleged in complaint paragraph 5(e)(3) that in that same period,
Talancon threatened employees with unspecified reprisals if
they selected the Union as their collective-bargaining repre-
sentative. These threats and statements are alleged to have
occurred during the numerous small group meetings that the
Respondent arraigned for Talancon to have with employees
between November 10 and 18, 2011.
Talancon spoke to these groups of employees in both English
and Spanish, going back and forth between the two languages.
Some of the employees to whom he spoke were proficient in
only one language, with others being proficient in both. Five
employees, Marta Magallon, Herlinda Cervantes, Evangelina
Villegas, Paul Gaudet, and Maria Solano, testified at some
length about their meetings with Talancon.12 However, they
did not all attend the same meetings.
As I previously stated, I found Talancon to be an incredible
witness. His professed lack of knowledge about his role as a
“facilitator” as set forth in the contract between LRI and the
Respondent, and his contention that his role was that of educa-
tor, rather than a partisan attempting to secure the Union’s de-
feat in the election, defies credulity. Further, the contingent
character of his fee, and that of LRI, being totally dependent
upon the Union’s defeat in the election, makes Talancon poten-
tially a highly biased witness. Obviously, he has a considerable
monetary interest in the outcome of this hearing favoring the
Respondent. That is to be contrasted with the employee wit-
nesses who testified against the pecuniary interest of their Em-
ployer, and who placed their future with Portola at risk in doing
so. The Board has frequently held that the testimony of such
witnesses may be given special credence. For these reasons, as
well as those expressed earlier in this decision, I will credit the
testimony of employee witnesses over that of Talancon, when-
ever they are at variance.
Marta Magallon attended the same meeting as Paul Gaudet.
Magallon speaks Spanish, Gaudet speaks English, and his job
classification was not included in the unit sought to be repre-
sented by the Union. Magallon, somewhat inarticulately, re-
calls Talancon saying that “we could lose the benefits we have
with Portola, that if Portola didn’t want to, they didn’t, they
wouldn’t give us any benefits.” She also remembered Talancon
12 Employee Alicia Martinez also spoke about her meeting with Ta-
lancon, but with very little detail. She testified that she could not re-
member much of what was said because of Talancon’s poor Spanish.

PORTOLA PACKAGING, INC. 1335
saying that management would “go and talk to us.” Magallon
claims that Talancon mentioned the “attendance policy,” and
she seems to be saying that Talancon was suggesting that the
policy was something that the employees might be able to get
management to “change.”
In his testimony, Gaudet remembered the meeting different-
ly. He recalled the gist of the meeting as an explanation of the
election process, and the use of secret ballots. Gaudet specifi-
cally denied that Talancon issued any threats, promises, or
commands to vote a certain way. However, I did not find Gau-
det to be a compelling witness. He seemed to have his testimo-
ny rehearsed and testified as if by rote.
I credit Magallon, whose testimony seemed genuine, and
conclude that Talancon was telling the employees that they
would lose benefits if the Union were successful in the election.
Further, I conclude that Talancon was suggesting to the em-
ployees that in the case of the attendance policy, the Employer
might be willing to make improvements. As I discredit Talan-
con, I do not believe that he was simply explaining the election
process and collective-bargaining process to the employees. I
find his self-serving statements very disingenuous.
Herlinda Cervantes attended a meeting with Talancon at
which none of the other five testifying employees were present.
She testified in a rather disjointed, broken manner, perhaps
because of the use of a Spanish-language interpreter. At one
point she appeared to be testifying as to what Talancon had said
that the Respondent would do, if the Union won the election.
She testified that he said that while “he didn’t know how the
company [would] react, and that the company could treat us
badly, for, do, to treat the employees badly that were in favor of
the union because, and that we could be fired.” However, dur-
ing cross-examination by counsel for the Respondent, Cervan-
tes responded to a question as to whether Talancon had said
anything about what could happen if the Union won the elec-
tion, with an emphatic, “That we could be fired.”
I credit Cervantes, whose testimony is never directly chal-
lenged, except by Talancon’s discredited general denials.
Therefore, I conclude that Talancon threatened employees with
discharge if the Union were successful in the election.
Evangelina Villegas testified about a meeting she attended
with Talancon, along with Maria Solano. According to Ville-
gas, during the meeting, Talancon said that he had received
many “complaints” from employees, and that “he was going to
hand over all those notes to the managers,” so they would be
aware of them. Further, he indicated that he had been taking
such notes when employees voiced complaints. Villegas testi-
fied that during the meeting, Solano complained about not be-
ing respected by the supervisors, having too much work to per-
form, and of seeing employees cry because they were over-
worked. According to Villegas, Talancon replied that he would
“tell that to all the bosses, to the managers, and he would see if
they change things.”
Solano testified in a general way that Talancon “explained to
us about the work, about the Union, and about Portola.” He
talked about the election, and said that it was “no problem”
however an employee decided to vote. Solano denied that Ta-
lancon made threats, or promises, or said that the Respondent
would otherwise take any action on the basis of how employees
voted. However, she never addressed the specific claim of
Villegas that Talancon said that he would take his notes of em-
ployee complaints to management, and see whether they were
addressed. In this respect, Solano’s testimony does not rebut
or dispute the testimony of Villegas. As noted, I do not accord
Talancon’s discredited denials any weight. Accordingly, I
credit Villegas’ testimony that Talancon said that he would take
employee complaints to management for them to address.
Regarding the allegation in complaint paragraph 5(e)(1), I
believe that the testimony of Marta Magallon and Evangelina
Villegas establishes that the Respondent solicited employee
complaints and grievances, and promised its employees in-
creased benefits and improved terms and conditions of em-
ployment if they rejected the Union in the election. I found that
Magallon credibly testified that at an employee meeting, Talan-
con told the assembled workers that management would talk
with the employees and that something might be done to get an
attendance policy they did not like changed. Further, I found
that Villegas credibly testified that at a similar meeting, Talan-
con told the employees present that he had been taking notes of
employee complaints, and that he was going to hand those
notes over to Portola’s managers so that they would be aware of
the complaints.
The Board has repeatedly held that, in the absence of a pre-
vious practice of doing so, the solicitation of grievances by an
employer during an organizational campaign violates the Act
when the employer promises to remedy those grievances. See,
e.g., Center Construction Co., 345 NLRB 729, 729–731 (2005),
enfd. in part, denied in part 482 F.3d 425 (6th Cir. 2007);
Uarco, Inc., 216 NLRB 1, 2 (1974). The promise to remedy
need not be specific or even explicit. Grouse Mountain Associ-
ates II, 333 NLRB 1322, 1324 (2001). Where an organization-
al campaign is ongoing, the solicitation of grievances creates a
rebuttable presumption that the employer is going to remedy
them. Aladdin Gaming, LLC, 345 NLRB 585, 607 (2005),
citing Maple Grove Health Center, 330 NLRB 775, 775 (2000);
Center Construction Co., supra. This is especially true when an
employer that has not previously had a practice of soliciting
employee grievances suddenly initiates such a practice during
an organizational campaign. Amptech, Inc., 432 NLRB 1131,
1136–1138 (2004).
In the matter before me, there is no probative evidence that
the Employer ever had a practice of soliciting employee com-
plaints. To the contrary, the Employer has the reputation
among its employees of being insensitive to employee com-
plaints. Talancon’s statements during preelection meetings
with employees were designed to cause employees to state their
complaints or grievances, followed by a subtle notice that those
complaints would be transmitted to management, with the im-
plied suggestion or promise that those complaints would then
be favorably adjusted by the Employer. The Respondent has
offered no credible evidence to rebut this presumption.
Accordingly, I conclude that counsel for the General Counsel
has met her burden and established that the Respondent inter-
fered with, restrained, or coerced employees in the exercise of
their rights guaranteed by Section 7 of the Act, through the
conduct of Talancon as alleged in complaint paragraph 5(e)(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1336
Such conduct constitutes a violation of Section 8(a)(1) of the
Act.
Regarding the allegation in complaint paragraph 5(e)(2), I
believe that the testimony of Herlinda Cervantes establishes
that Talancon threatened employees with discharge for support-
ing the Union. I have found that Cervantes credibly testified
that at a preelection meeting for employees, Talancon informed
the assemble employees that if the Union won the election, the
Employer might treat them badly, even firing them.
Of course, it is axiomatic that an employer violates Section
8(a)(1) of the Act when it threatens to discharge or take other
adverse employment action against employees for supporting a
union. Such conduct clearly serves to interfere with, restrain,
or coerce employees in the exercise of their Section 7 rights.
Accordingly, counsel for the General Counsel has established
that the Respondent, through Talancon, has violated the Act, as
alleged in complaint paragraph 5(e)(2).
Regarding the allegation in complaint paragraph 5(e)(3), I
believe that the testimony of Marta Magallon establishes that
Talancon threatened employees with unspecified reprisals if
they chose the Union as their collective-bargaining representa-
tive. I have found that Magallon credibly testified that at a
preelection meeting for employees, Talancon informed assem-
bled employees that if the Union won the election, the employ-
ees might lose benefits. While not specifying what benefits he
was talking about, and without making his statement contingent
on the vagaries of collective-bargaining, Talancon was simply
threatening employees that a union victory might result in a
loss of benefits.
Once again, it is axiomatic that an employer violates Section
8(a)(1) of the Act when it threatens to withhold benefits from
employees for supporting a union. Such conduct clearly serves
to interfere with, restrain, or coerce employees in the exercise
of their Section 7 rights. Accordingly, counsel for the General
Counsel has established that the Respondent, through Talancon,
has violated the Act, as alleged in complaint paragraph 5(e)(3).
2. The actions and statements of Ray Buchanan
The General Counsel alleges in complaint paragraph 5(f)(1)
that on about November 16, 2011, Supervisor Ray Buchanan
interrogated employees about their union and concerted activi-
ties. Further, it is alleged in complaint paragraph 5(f)(2) that
during the same period of time, Buchanan created an impres-
sion among the employees that their union and other concerted
activities were under surveillance by the Respondent. Also, it
is alleged in complaint paragraph 5(f)(3) that during that same
period, Buchanan threatened employees with unspecified re-
prisals by not assisting them because they engaged in union and
other concerted activity.13 These three allegations arise out of a
single conversation between Herlinda Cervantes and her super-
visor, Ray Buchanan, in the lunchroom of the plant on Novem-
ber 16, 2011.
According to the testimony of Cervantes, she was present in
the lunchroom with Buchanan and another employee, Daisy,
whose last name she cannot recall. Daisy is a production team
13 This unfair labor practice allegation is also the subject of the Un-
ion’s Objection 3 to conduct affecting the results of the election.
member, as is Cervantes. Cervantes testified that she ap-
proached Buchanan and told him that he should help an em-
ployee by the name of Jorge Mendez, who she said had too
much work to perform. Further, she testified that Buchanan
replied that he would not help Mendez because “he knows that
[Mendez] was in the Union.” Allegedly, Buchanan then asked
Cervantes if she knew that Mendez was in the Union, to which
she replied that she did not know. Cervantes testified that Bu-
chanan next asked her whether she had “signed a card for the
Union.” She told him that she had not, to which he asked her if
she was sure. This time she did not answer his question.
Cervantes testified that next she asked Buchanan a question,
namely whether he had been in a union before. He replied that
he had been in a union in the past, but “it was no good.” Bu-
chanan followed up with a question to Cervantes, asking her
whether she had been in a union before. Cervantes replied that
she had previously been in a union, 15–18 years in the past.
She added that currently she was still receiving money from
that union. According to Cervantes, Buchanan said that he
could not believe that.
Cervantes testified that Buchanan then asked Daisy “what
she thought about unions,” to which Daisy said that she did not
know. Cervantes next told Buchanan that she needed to go
back to work, as her time was up. She left the room, which
ended the conversation.
As one would expect, Buchanan’s version of this conversa-
tion was somewhat different. He recalled the conversation in
the lunch room, and also remembered the other employee pre-
sent was Daisy Malabo, another production team member.
Buchanan testified that Cervantes started the conversation,
asking him for his “opinion, about the Union coming into the
Portola plant.” He responded that in his opinion, “[T]he Union
coming into the Portola plant is a very big mistake.” She asked
him why, to which he replied that based on his past experienc-
es, if the Union came into the plant, the supervisors would no
longer be able to help the production team members on the
plant floor, as they did currently. After prompting by counsel
for the Respondent, Buchanan testified that he told Cervantes
that his past experience consisted of working at Ford Motor
Company where the UAW represented the employees, and
where supervisors were not allowed to assist the production
employees on the plant floor. He claims that he told Cervantes
that his “fear” was not being allowed to assist the production
team members as he currently did. Cervantes replied that she
did not believe that to be true, and that was the end of the con-
versation.
Buchanan testified that he did not speak with Daisy during
this conversation, and Daisy said nothing, simply sitting and
eating her lunch. Unfortunately, Daisy was not called as a wit-
ness by any party to this proceeding.
Obviously, Buchanan and Cervantes differ significantly re-
garding the substance of this conversation. This is not an easy
matter to resolve, as both witnesses testified in a direct and
forceful way. However, on the whole, I was more impressed
with Cervantes. Her testimony was reassuringly detailed.
Overall it also seemed more logical and likely than that told by
Buchanan. His contention that he told Cervantes about having
previously worked for Ford Motor Company sounded a bit

PORTOLA PACKAGING, INC. 1337
contrived and self-serving. Further, as I have mentioned sever-
al times in this decision, the Board tends to give added weight
to the testimony of current employees of a respondent, such as
Cervantes, who are testifying against their employer’s interests,
to the potential detriment of themselves. It is appropriate to
assume that such employees wish to keep their jobs, and, there-
fore, only testify against the interests of their employer because
telling the truth requires them to do so. See Samaritan Medical
Center, supra; Hi-Tech Cable Corp., supra; Georgia Rug Mills,
supra; Gold Standard Enterprises, supra; D & H Mfg. Co, su-
pra. It was certainly easier for Buchanan to testify in favor of
the Respondent than it was for Cervantes to testify against her
employer’s interests. Therefore, I credit Cervantes’ version of
her conversation with Buchanan.
Buchanan was engaged in an illegal interrogation, creating
an impression of surveillance, as well as a threat to not assist
employees due to their union activity. The conversation began
with Cervantes making a legitimate work-related remark to
Buchanan, namely that he should help employee Jorge Mendez,
as Mendez had too much work to do. Buchanan replied by
saying that he would not help Mendez because Mendez was in
the Union. This statement constitutes an unlawful implied
threat to discriminate against Mendez by refusing to help him
due to his union activity. See Evergreen America Corp., 348
NLRB 178, 202–203 (2006) (telling known union proponent,
“Why did you lead this campaign? Now I can’t help you any-
more” was implied threat of reprisal). Buchanan’s threat con-
stituted a violation of Section 8(a)(1) of the Act, as alleged in
complaint paragraph 5(f)(3).14
Further, when Buchanan asked Cervantes if she knew
whether Mendez was in the Union and asked her whether she
had signed a union authorization card, he was engaged in un-
lawful interrogation. The Board looks to the “totality of the
circumstances” in determining whether a supervisor’s questions
to an employee about suspected protected activity were coer-
cive under the Act. Rossmore House, 269 NLRB 1176 (1984),
affd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th
Cir. 1985). In Westwood Health Care Center, 330 NLRB 935
(2000), the Board listed a number of factors considered in de-
termining whether alleged interrogations under Rossmore
House were coercive. These are referred to as “Bourne fac-
tors,” so named because they were first set forth in Bourne v.
NLRB, 332 F.2d 47, 48 (2d Cir. 1964). These factors include
the background of the parties’ relationship, the nature of the
information sought, the identity of the questioner, the place and
method of interrogation, and the truthfulness of the reply.
In the matter at hand, Buchanan was Cervantes’ immediate
supervisor, and he questioned her in the lunchroom in the pres-
ence of one other employee, also a subordinate of Buchanan.
The information sought was highly confidential and privileged,
namely whether Mendez was “in the Union,” and whether Cer-
14 Whether Buchanan’s implied threat is construed as a threat of an
unspecified reprisal, as set forth in the complaint, or an implied threat
specifically to withhold assistance to employees, the result is the same.
In either case, the Respondent, through Buchanan, has violated the Act
by threatening to discriminate against employees because of their union
activity.
vantes had “signed a union authorization card.” Cervantes was
clearly surprised and frightened by the question, telling Bu-
chanan that she did not know whether Mendez was in the Un-
ion or not, and denying that she had signed a union card. She
was obviously unwilling to tell him that she was a union sup-
porter, even after he asked her a second time. Under the
Bourne factors, Buchanan’s interrogation of Cervantes was
clearly coercive.
Based on the above, I conclude that Buchanan unlawfully in-
terrogated Cervantes. His questions served to interfere with,
restrain, or coerce Cervantes in the exercise of her Section 7
activity. Accordingly, I find that the Respondent, through Bu-
chanan, violated Section 8(a)(1) of the Act, as alleged in com-
plaint paragraph 5(f)(1).
Buchanan also created an impression among employees that
their union and other concerted activities were under surveil-
lance by the Respondent. In his conversation with Cervantes,
Buchanan made the statement that Mendez was in the Union, as
if that was a fact that he knew. Also, when Cervantes denied
that she had signed a union card, Buchanan asked her if she was
“sure,” as if he had some knowledge of what she had done.
These statements by Buchanan could reasonably have left Cer-
vantes, and Daisy who was also present, with the impression
that the Respondent was somehow aware of the union activity
engaged in by its employees.
It is well established that where employees are conducting
their activities openly on or near company premises, the open
observation of such activities by an employer is not unlawful.
Roadway Package System, 302 NLRB 961 (1991). On the
other hand, the Board has consistently held that “[e]mployees
should not have to fear that ‘members of management are peer-
ing over their shoulders, taking note of who is involved in un-
ion activities, and in what particular ways.’” Conley Trucking,
349 NLRB 308, 314 (2007), quoting Fred’k Wallace & Son,
Inc., 331 NLRB 914 (2000).
There is no indication that Mendez and Cervantes were en-
gaged in union activity in an open manner, or, for that matter,
in any way. Nevertheless, Buchanan’s statements would rea-
sonably leave employees with the impression that the Respond-
ent, through Buchanan, was somehow aware of what they were
doing. This would logically cause employees to suspect that
the Respondent was watching their movements and actions,
even when those activities were conducted in private.
Buchanan’s statements would tend to interfere with, restrain,
or coerce employees who wished to exercise their Section 7
rights. Accordingly, I conclude that the Respondent, through
Buchanan, has violated Section 8(a)(1) of the Act, as alleged in
complaint paragraph 5(f)(2).
3. The vote “no” letter
Complaint paragraph 5(g) alleges that in mid-November
2011, Tim Tyler, by letter, threatened employees with unspeci-
fied reprisals by demanding that they vote “no” in the upcom-
ing representation election. As was noted above, an election
was scheduled for December 1, 2011, in Case 28–RC–067973,
for a unit of the Respondent’s employees. The Respondent had
been engaged in a vigorous campaign to defeat the Union al-
most since the petition was filed on November 1. As was dis-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1338
cussed earlier, the Respondent contracting with LRI to conduct
much of that campaign, pursuant to which Armando Talancon
held meetings with small groups of employees. Additionally,
numerous flyers and letters were produced by the Employer and
distributed to employees, some were posted at the plant, others
were handed to employees, and still others were mailed to em-
ployees’ homes. These flyers and letters were clearly intended
to cause the employees to vote in the election against union
representation. Many of the flyers and letters were signed by
the plant general manager, Tim Tyler.
While there is some dispute about this issue, I have conclud-
ed, as testified to by the Respondent’s witnesses, that each flyer
or letter was two sided, with the text written in the English
language on one side, and the Spanish-language text on the
other side. The English-language text was translated into Span-
ish by Chris McClanahan, who is fluent in Spanish, and/or by
Armando Talancon, who is conversant in Spanish, but not flu-
ent. I have concluded that those Spanish-speaking employee
witnesses called by the General Counsel, who testified that they
received election related documents from the Employer, were
mistaken when they testified that some of those documents only
contained a Spanish-language text. I am of the view that as
they were only fluent in Spanish, they paid no attention to the
English-language text, and, therefore, have simply forgotten
that the documents contained two languages.
The document at issue herein was undated, but the testimony
of various witnesses establish that it was issued about 2 weeks
prior to the election. This document is a letter signed by Tim
Tyler, addressed individually to each specific employee in the
proposed bargaining unit, and mailed, respectively, to each
employee’s home address. There were two versions of the
letter entered into evidence, the Spanish-language version (GG
Exh. 5) and the English-language version (Emp. Exh. 5). Tyler
testified that he wrote the letter in English, and Armando Ta-
lancon testified that he translated the letter into Spanish. Ta-
lancon testified that his Spanish is “not that great.”
As I have indicated above, I conclude that his letter, as with
all preelection documents produced by the Respondent, was
two sided, with English on one side and Spanish on the other.
The Spanish-language version of the letter is the subject of this
unfair labor practice allegation.15
For the most part, the letter consists of standard campaign
talking points for an employer, such as an admonition to be-
ware of union promises, and with a discussion of the uncertain-
ties of the collective-bargaining process. However, it is the last
sentence in the Spanish-language text that is the subject of this
allegation. The same sentence in the English-language text,
which reads as follows, is not in dispute: “I urge you to vote
NO on December 1.”
The Spanish-language text of the last sentence of the letter
is: “Te exijo que votas NO en Diciembre 1, 2011.” The Gen-
eral Counsel and the Union contend that the Spanish sentence
should be translated as, “I demand that you vote NO on De-
cember 1, 2011.” The key phrase is “te exijo.” However, ac-
cording to the Employer, the Spanish verb “exigir” should be
15 This dispute is also the subject of the Union’s Objection 1 to con-
duct affecting the results of the election.
translated as “urge” or “exhort,” rather than “demand,” making
the sentence in dispute read: “I urge that you vote NO on De-
cember 1, 2011.”
At the hearing, much testimony and evidence was taken re-
garding the meaning of the Spanish verb “exigir.” I asked the
Spanish-language interpreter during the hearing to translate the
sentence in question using “common, everyday Spanish as used
by Spanish speakers in the State of Arizona.” The interpreter
translated the sentence as follows: “I demand that you vote no
on December 1, 2011.” However, when interpreting the testi-
mony of both Marta Magallon and Evangelina Villegas, two
Spanish-speaking employees, as to their understanding of the
sentence, the same interpreter used the word to “exhort,” rather
than to “demand.” When the interpreter was asked as to why
the discrepancy, she responded as follows: “I believe when
translating or interpreting the spoken word, sometimes the
speaker’s inflection may alter the slight nuance of the word,
which is why I chose exhort. In the written word, I have just
what it says, but in the spoken word there is always that nuance
that can be picked up and that’s why I chose, which essentially
the words mean the same things, one’s a little degree more
assertive than the other and I picked that up from the speaker’s
inflection.” She went on to say, “Actually here, which is the
word to demand, could be anything from demand, to ask, to
exhort, to require, so there is many different meanings.”
Both Magallon and Villegas testified that they were fright-
ened after receiving the letter from Tyler, believing that they
could be fired if they voted for the Union. They said that they
felt they were being told to vote against the Union, and they
shared their fear with other employees.
Finally, a number of pages from Spanish/English dictionaries
were admitted into evidence. The McGraw-Hill Spanish and
English Legal Dictionary gives the definition of “exigir” as,
“To demand, command, order, require.” (GC Exh. 8.) Web-
ster’s New World Concise Spanish Dictionary gives the defini-
tion of “exigir” as, “to demand” or “to call for, to require.”
(GC Exh. 9.)
Talancon admitted that his Spanish was weak. Regarding
this particular translation, which he drafted, he testified, “It was
kind of simple. It is elementary translation. It is not that
great.” Nevertheless, he said that he believed that “exigir”
meant urge or exhort.
Based on the evidence presented, I am convinced that the
word “exigir,” as used in the Spanish-language letter expressed
a command and that “demand” is a better translation than
“urge” or “exhort.” While I recognize that the word “exigir”
may have shades of meaning in Spanish corresponding to the
range identified by the interpreter, I believe that the use of the
word in the letter fell within the forceful, commanding end of
that spectrum. The pages from the two Spanish/English dic-
tionaries admitted into evidence translate the word as “demand”
and do not even mention the more gentle senses described by
the interpreter. This indicates to me that the imperative sense is
predominant. Further, the interpreter gave the common, re-
gional translation as “demand.” Aside from being good evi-
dence of what the word means to the Tolleson plant employees,
there is no disparity between the dictionary definition and local
usage. Finally, the commanding sense is consistent with the

PORTOLA PACKAGING, INC. 1339
reaction of the employees reported by Magallon and Villegas.
The words “I demand” used by a boss inspire fear in a way that
the words “I urge” or “I exhort” do not.
I am of the view that the Spanish-language letter sent to
Spanish-speaking employees, of which there were approximate-
ly 30, in mid-November 2011, threatened those employees with
unspecified reprisals by “demanding” that they vote “no” in the
election. This demand, made in the name of the general man-
ager of the facility, reasonably had a tendency to coerce em-
ployees into voting against the Union based on their fear of the
consequences of defying Tyler’s demand. In the context of the
workplace, employees naturally take any demand made by a
manager or supervisor very seriously. Here, that is evidenced
by the fear and concern that Tyler’s demand instilled in Magal-
lon, Villegas, and other employees they spoke with about the
letter.
A threat need not be explicit to violate the Act. In Martech
MDI, 331 NLRB 487, 500 (2000), the employer’s order to
“knock it off” regarding union sympathies was found to contain
an implied threat in violation of Section 8(a)(1) of the Act.
Further, the threat need not specify the reprisal that will be
taken against the employees. In Valleydale Packers, Inc., 238
NLRB 1340, 1343 (1978), the Board held that the employer’s
warning that an employee “had better leave it [the Union]
alone,” constituted an implicit threat to the employee, although
the exact reprisal against the employee that was implied in the
threat was not spelled out.
It is immaterial what Tyler’s intent was, or what the English-
language version of the letter said. What matters is whether
Talancon’s Spanish translation of the letter had a tendency to
interfere with, restrain, or coerce employees in the exercise of
their Section 7 rights. I believe that it did. Accordingly, I con-
clude that Tyler’s letter mailed to employees in mid-November
2011, violated Section 8(a)(1) of the Act, as alleged in com-
plaint paragraph 5(g).
4. The actions and statements of Fabian Franco
Complaint paragraphs 5(h)(1), (2), and (3) allege that in
about mid-November 2011, the Respondent, through Produc-
tion Supervisor Fabian Franco, interrogated employees about
their union and other concerted activities; threatened employees
with reduced benefits if the Union was selected as the employ-
ees’ collective-bargaining representative; and threatened its
employees with unspecified reprisals because they engaged in
union and other concerted activities. In support of these allega-
tions, counsel for the General Counsel offered the testimony of
employee Evangelina Villegas.
According to the testimony of Villegas, approximately
3weeks before the election, she was in the production room
with her shift supervisor, Franco. The two were alone and she
was working when Franco asked her, “What do you think about
the Union?” Villegas testified that she responded that she had
never previously worked with a union. She contends that Fran-
co answered, “The Union wasn’t good because it would take
away benefits, we’d get paid less, and would take away our
vacations.” After hearing that, Villegas asked Franco, “If the
Union’s not good and they’re gonna take way our benefits, and
they are going to pay us less, wouldn’t that benefit the compa-
ny?” Allegedly, Franco responded that, “Portola had the mon-
ey, not the Union.” According to Villegas, the conversation
ended with Franco saying that if she had any other questions
about the Union, she should seek him out and ask. On cross-
examination, Villegas denied that Franco’s statements were
made in the context of explanations of the bargaining process,
or Franco’s personal experience as a union member or supervi-
sor in an organized facility.
While some of her testimony was a little obtuse, I think it is
obvious that what Villegas was contending that Franco said was
that if the Union won the election, the Respondent would re-
spond and retaliate by reducing wages and benefits. Nothing
else could have been reasonably intended when Franco added
that the Employer had the money, not the Union. In this con-
text, “money” meant “power.”
Franco testified that in the month preceding the election, he
had only one conversation with Villegas about the Union or the
election. This conversation occurred a few days before the
election and was very brief. According to Franco, he simply
reminded Villegas to vote in the election, and said to her that it
was none of his business how she voted. He categorically de-
nied making threats or promises to employees or asking em-
ployees about their thoughts and feelings regarding the Union.
It is not possible to reconcile the two versions of the conver-
sation told by Villegas and Franco. One of them is not telling
the truth. Counsel for the Respondent argues that Franco
should be credited as he is no longer employed by Portola,
having voluntarily resigned to relocate to a cooler climate, and,
therefore, as a disinterested witness, had no reason to fabricate.
See, e.g., Vegas Village Shopping Corp., 229 NLRB 279, 282–
283 (1977); Yaohan of California, 280 NLRB 268, 278 (1986);
W. R. Grace Co., 240 NLRB 813, 820 (1979). On the other
hand, the General Counsel contends that Villegas should be
credited as she is a current employee who is willing to testify
against her employer’s interests, potentially jeopardizing her
job, which allegedly demonstrates her willingness to tell the
truth. Both arguments are logical and have some merit.
However, I credit the testimony of Villegas. I view her story
as too detailed and specific to be purely a product of her own
imagination. Further, for the most part, she held to her account
on cross-examination. Franco does not acknowledge that the
main substance of the conversation even took place. In my
view, this is more improbable than Villegas’ testimony about
the content of the conversation. The context in which Villegas
contends the conversation occurred seems logical and has the
ring of authenticity to it. Accordingly, I will credit Villegas’
version of the conversation.
In asking Villegas what she thought of the Union, Franco
was engaged in unlawful interrogation. Looking at the “totality
of the circumstances” as set forth in Rossmore House, supra,
and the Bourne factors, as found in Bourne v. NLRB, supra, I
find that Franco’s question was coercive. Franco and Villegas
were alone on the production floor, Franco was Villegas’ im-
mediate supervisor, the question of what she thought about the
Union was highly intrusive, and Villegas, who was a union
supporter, was clearly afraid to be honest with Franco and tell
him the truth. Under these circumstances, Franco’s question
would reasonably have had the affect of chilling Villegas’ in-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1340
terest in engaging in union activity. As such, it constituted a
violation of Section 8(a)(1) of the Act, as alleged in complaint
paragraph 5(h)(1).
Further, Franco continued to violate the Act during the con-
versation when he stated that the Union was no good and, im-
plying that if the Union won the election, employees would lose
benefits, that employees would be paid less, and that they
would lose their vacations. This was coupled with Franco’s
statement that it was the Employer who had the money, not the
Union. There was nothing said about the vagaries of collective
bargaining or about the bargaining process in general, merely
the implication that if the Union won the election, some bad
things would happen, and that the Employer held the economic
power. What this reasonably said to Villegas was that if the
Union won the election, the Employer would retaliate by reduc-
ing wages and benefits. As such, it constituted a not very sub-
tle threat by the Respondent, through Franco, to reduce benefits
and wages if the Union was selected as the collective-
bargaining representative. Certainly such a threat would tend
to interfere with, restrain, or coerce employees in the exercise
of their Section 7 rights. This constitutes a violation of Section
8(a)(1) of the Act, as alleged in complaint paragraph 5(h)(2).
The General Counsel alleges in complaint paragraph 5(h)(3)
that during this same conversation between Villegas and Fran-
co, that Franco threatened her with unspecified reprisals be-
cause the employees engaged in union and other concerted
activity. However, I have no idea what facts allegedly support
the General Counsel’s contention. To the extent that Franco
made threats to Villages, it was to reduce wages and benefits,
which I have just discussed. This was a specific threat of a
reprisal, not an unspecified threat. If anything, this allegation is
simply a repetition of the earlier allegation. As such, it is du-
plicative. Therefore, I shall recommend to the Board that com-
plaint paragraph 5(h)(3) be dismissed.
The General Counsel alleges in complaint paragraph 5(i) that
in about mid-November 2011, the Respondent, by Franco, so-
licited employee complaints and grievances, and promised its
employees increased benefits and improved terms and condi-
tions of employment if they rejected the Union as their collec-
tive-bargaining representative. In support of this allegation,
counsel for the General Counsel offers the testimony of
Evangelina Villegas, who testified that in the month of Novem-
ber, the employees on her shift started having to attend meet-
ings with Supervisor Franco towards the end of each shift.
According to Villegas, Franco said that the reason for these
meetings was to “talk about the problems with the machines,”
and also so that “we would get more attention from our em-
ployers.”
Tim DeCrow testified about “production meetings” with em-
ployees that started in October 2011. However, on cross-
examination by counsel for the General Counsel, he admitted
that these meetings actually started in November 2011, as was
reflected in an affidavit that he had previously given to the
Region. Under cross-examination, DeCrow admitted that these
meetings were also used for training, to discuss safety issues,
and to talk about the upcoming union election. Beginning in
November, these meetings were held on every shift, which
amounted to three meetings with employees every day.
In any event, in my view, counsel for the General Counsel
has failed to offer sufficient evidence to support a violation of
the Act regarding the allegation that starting in November the
Respondent solicited employee complaints and grievances, and
promised its employees increased benefits and improved terms
and conditions of employment if they rejected the Union. In
her posthearing brief, counsel stated that “witness after witness,
including DeCrow and Franco, testified that the meetings began
in November.” But, the only employee witness whose testimo-
ny is referenced by counsel is Villegas. Further, nothing in the
testimony of Villegas, DeCrow, or Franco indicates that griev-
ances or complaints were solicited at these meetings and that
promises were made to remedy complaints. Villegas’ testimo-
ny regarding these meetings was confusing, somewhat incom-
prehensible, vague, and without substance. Her statement that
Franco said, “[W]e would get more attention from our employ-
ers,” makes no sense to me. I have no idea what Villegas was
trying to say, and counsel failed to clarify it with further ques-
tioning.
Accordingly, as the General Counsel has failed to meet her
burden of proof and support this allegation by a preponderance
of the evidence, or by any other standard of proof, I shall rec-
ommend to the Board that complaint paragraph 5(i) be dis-
missed.
5. Tim DeCrow’s preelection statements
Complaint paragraph 5(j) alleges that in late November
2011, the Respondent, by Tim DeCrow, threatened employees
with unspecified reprisals, if they selected the Union as their
collective-bargaining representative. According to the testimo-
ny of employee Marta Magallon, at the end of a shift meeting,
with Supervisor Fabian Franco present, Production Manager
DeCrow addressed the employees on her shift. Allegedly, re-
ferring to the soon to be held election, DeCrow said that “he
couldn’t tell us whether to vote yes or no, but to vote, keeping
in mind the wellbeing of our families.” DeCrow spoke in Eng-
lish, with Franco translating his words into Spanish. Magallon
testified that as they left the plant, employees talked about
DeCrow’s words, and that they were scared about losing their
jobs, and wondered how they would feed their families. This
was the only evidence offered by counsel for the General
Counsel in support of this allegation.
Two other employees testified about the end of the shift
meeting where DeCrow spoke. According to Herlinda Cervan-
tes, in referring to the election, DeCrow told the assembled
employees that “we were all big and [that] was a decision we
were going to have to make.” By the word decision, Cervantes
indicated that she understood it meant to vote “yes or no.”
Evangelina Villegas testified that she attended the meeting
where DeCrow spoke. According to Villegas, DeCrow said
that “he could not tell us who to vote for, but just to keep in
mind that we should vote for the [party] who could help us the
most and who would help our families.”
The day before the 24-hour period preceding the election,
DeCrow attended an end of shift meeting. According to his
testimony, regarding the election, he told the employees that
they had all “been friends for a long time, . . . [and they should]
remember their relationships with each other.” Further, he told
PORTOLA PACKAGING, INC. 1341
them that they “would have [their] own situations, [their] own
decisions to make, and each one of us has to make our vote
based on what is best for us, and what is best for our families.”
In fact, there is really not much of a difference between what
Magallon, Cervantes, Villegas, or DeCrow claim was said by
DeCrow at the meeting in question. Even accepting Magal-
lon’s testimony as accurate, all she claims that DeCrow said
was that in voting, “to keep in mind the wellbeing of [their]
families.” I see nothing improper in that statement. It is not a
threat of any reprisal, unspecified or otherwise. A representa-
tion election was a big event at the plant. Collective bargaining
would, of course, potentially affect the wages, hours, and work-
ing conditions of the employees, and collaterally of their fami-
lies. I fail to see how reminding the employees of the im-
portance of the election to themselves and their families could
constitute a threat of reprisal. For Magallon or other employees
to have reached the conclusion that DeCrow’s statement was a
threat of reprisal against them if they voted in favor of the Un-
ion or if the Union won the election was, in my view, unrea-
sonable.
Further, there is ample Board case authority for the proposi-
tion that DeCrow’s statement that employees should vote in
their own best interests, or those of their families, does not
constitute a violation of the Act. See, e.g., Goldtex, Inc., 309
NLRB 158, 163 (1991) (statement to employee “that it would
be in his best interest to vote no, that the Union could not do
anything but charge dues,” was not coercive.), enfd. mem. 16
F.3d 409 (4th Cir. 1994); Liberty Mutual Insurance Co., 194
NLRB 1043, 1044–1046 (1972) (memo to employees stating
that selecting a union “would not be to your best interest and, in
fact, could deter and hamper your personal relation with your
Company” is at most an argument containing no threat or warn-
ing).
In Werthan Packaging, Inc., 345 NLRB 343, 344 (2005), the
Board ruled that the employer’s statement that it was in em-
ployees’ and their families’ best interest to vote “no” was not
threatening. “An employer’s telling an employee that it would
be in that person’s or family’s ‘best interest’ to vote against the
union, unaccompanied by threats, is too vague to warrant a
finding that the employer was threatening the employee.” Id.
“At most, [the employer] was expressing her opinion that [the
employee and his] family did not need the Union.” Id. The
employer “was free to express the view that unionization would
not be in the best interests of the employees and their families.”
Id.
The Werthan case is directly on point. DeCrow’s statements
at the shift meeting did not interfere with, restrain, or coerce
employees in the exercise of their Section 7 rights. Those
statements did not constitute a threat of reprisal for voting in
favor of the Union or for engaging in other union activity. He
merely advised employees that their vote was theirs to make,
and he lawfully stressed the importance of their vote by urging
them to consider their own best interests and those of their fam-
ilies. DeCrow’s statements were permissible under Section
8(c) of the Act. Accordingly, I shall recommend to the Board
that complaint paragraph 5(j) be dismissed.
6. Employee handbook
The General Counsel alleges in paragraph 5(m)(1) of the
complaint, as set forth in the Motion to Amend the Complaint
(GC Exh. 2), that since about April 21, 2011, the Respondent
has maintained the following overly-broad and discriminatory
rule in its employee handbook, dated January 1, 2011: “Section
1008; Corrective Actions: The following behaviors are also
prohibited: Violations may result in corrective action up to and
including immediate termination: 20. Failure to obtain permis-
sion to leave work, or your workstation, for any reason during
normal working time.” (GC Exh. 3.) The Respondent denies
that this provision is in any way unlawful.
In determining whether the existence of specific work rules
violate Section 8(a)(1) of the Act, the Board has held that “the
appropriate inquiry is whether the rules would reasonably tend
to chill employees in the exercise of their Section 7 rights.”
Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203
F.3d 52 (D.C. Cir. 1999). Further, where the rules are likely to
have a chilling effect on Section 7 rights, “the Board may con-
clude that their maintenance is an unfair labor practice, even
absent evidence of enforcement.” Id. See also Blue Cross-Blue
Shield of Alabama, 225 NLRB 1217, 1220 (1976).
The Board has further refined the above standard in Lutheran
Heritage Village-Livonia, 343 NLRB 646, 646 (2004), by cre-
ating a two-step inquiry for determining whether the mainte-
nance of a rule violates the Act. First, if the rule expressly
restricts Section 7 activity, it is clearly unlawful. If the rule
does not, it will nonetheless violate the Act upon a showing
that: “(1) employees would reasonably construe the language to
prohibit Section 7 activity; (2) the rule was promulgated in
response to union activity; or (3) the rule has been applied to
restrict the exercise of Section 7 rights.” Id. at 647; See North-
western Land Services, Ltd., 352 NLRB 744 (2009) (applying
the Board’s standard in Lutheran Heritage Village-Livonia,
supra at 647).
On the issue before me, counsel for the Respondent has cor-
rectly recited the current state of the law in his posthearing
brief, and has convincingly established that the provision in
question is not unlawful. As counsel points out, the provision
prohibits the “failure to obtain permission to leave work, or
your workstation, for any reason during normal working time.”
(Emphasis added by me.) The term “working time” is critical
to this analysis. In the Respondent’s handbook, the term
“working time” is specifically defined as “the period of time
scheduled for the performance of job duties, not including meal
times, break times or other periods when employees are proper-
ly not engaged in performing their work duties.” (GC Exh. 3,
p. 51, sec. 1104.)
As counsel points out, in an industrial environment, such as
Portola, where equipment is continuously running and produc-
tion requires constant attention, promoting employees’ presence
at their workstations during working time is critically im-
portant. Again, the prohibition only involves leaving the work-
station without permission during normal “working time.” It is
a well worn and established maxim that “work time is for
work.” Ling Products Co., 212 NLRB 152, 156 (1974). It is
highly unlikely that employees will misconstrue the term
“working time” to include lunch and breaktimes, which times
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1342
are typically encompassed and differentiated by the term
“working hours.”
Further, there is no reasonable basis for inferring a restriction
on Section 7 activity as a result of the rule. As the rule in ques-
tion does not refer to Section 7 activity, the Board will not
normally conclude that a reasonable employee would read the
rule to apply to such activity simply because the rule could be
interpreted that way. Lutheran Heritage Village, 343 NLRB at
646. See Palms Hotel & Casino, 344 NLRB 1363, 1367 (2005)
(“in determining whether a challenged rule is unlawful, the rule
must be given a reasonable reading, phrases should not be read
in isolation, and improper interference with employees’ right is
not to be presumed.”).
A very similar rule as that before me was approved by the
Board recently in 2 Sisters Food Group, Inc., 357 NLRB 1816,
1818 (2011). In that case, the ALJ found a rule over-broad that
prohibited “[l]eaving a department or the plant during a work-
ing shift without a supervisor’s permission,” and “[s]topping
work before the shift ends or taking unauthorized breaks.” The
Board disagreed and reversed, applying the standard used in
Lutheran Heritage Village. In its analysis, the Board first
found that the rule did not explicitly restrict Section 7 activities,
as it “only prevent[ed] an employee from taking unauthorized
leaves or breaks and does not expressly restrict concerted action
by employee.” Further, the Board concluded that an employee
reading the rule would not reasonably construe it to prohibit
conduct protected by Section 7.
In analyzing the rule in the 2 Sisters case, the Board distin-
guished Labor Ready, Inc., 331 NLRB 1656, 1656 fn. 2 (2000),
in which it held that a rule prohibiting “walk[ing] off” the job
was unlawfully overbroad because employees reasonably
would understand such a rule to prohibit the restriction on
“walking off” as synonymous with striking. The rule involved
in 2 Sisters, as with the similar rule at issue before me, prohib-
ited only leaving a department or the employer’s plant without
permission, stopping work before a shift ends, or talking unau-
thorized breaks. As such, it should not confuse employees or
reasonably lead them to believe that their right to engage in
Section 7 activity is being limited in any way.
I believe that 2 Sisters is controlling on this issue and repre-
sents the current state of Board law. Therefore, I find nothing
unlawful, overly-broad, or discriminatory regarding the rule in
question. Accordingly, I shall recommend to the Board that
paragraph 5(m)(1), as set forth in the Motion to Amend Com-
plaint (GC Exh. 2) be dismissed.
Paragraph 5(m)(2) of the complaint, as set forth in the Mo-
tion to Amend Complaint (GC Exh. 2), alleges that since about
April 21, 2011, the Respondent has maintained an overly-broad
and discriminatory rule in its employee handbook, dated Janu-
ary 1, 2011, which reads as follows: “(2) Section 1404: Media
Relations: Policy Statement—Employees should not provide
any information regarding the Company to the media (e.g. tele-
vision, radio and newspaper). All requests for information
from the media regarding any aspect of Portola must be re-
ferred to the Chief Financial Officer or President. All press
releases, publications, articles and any other documents for
release to the media must be approved in advance by the Chief
Financial Officer.” The Respondent denies that this provision
is in any way unlawful.
I am of the view that the rule in question is on its face over-
ly-broad and, thus, unlawful. A rule that limits the ability of
employees to discuss work-related issues with the media consti-
tutes an unlawful restriction on employees who wish to engage
in concerted activity with others, in this case through the media.
See, e.g., Crown Plaza Hotel, 352 NLRB 382, 386 (2008) (me-
dia policy prohibiting employees from commenting on “any
incident” unlawful where not restricted to when medial seeks
the employer’s “official comments”); Leather Center, Inc., 312
NLRB 521, 525, 528 (1993) (Board adopts ALJ finding that a
handbook provision allowing only a company officer to com-
ment to the media, and requiring all media contacts be referred
to a company official a violation).
Certainly one can imagine a situation where employees who
are unhappy with their wages, hours, or terms and conditions of
employment maybe interested in bringing their complaints to
the attention of the local press, with the hope that adverse pub-
licity, as reported in the press, may serve to embarrass the em-
ployer, and, thus, exert enough pressure to motivate the em-
ployer to improve working conditions. This is the essence of
concerted activity, and, as protected conduct, cannot be
abridged.
Counsel for the Respondent’s statement in his posthearing
brief that “nowhere” does the policy purport to restrict employ-
ees from communicating to the media about matters of concern
to them, and does not restrict the expression of views about
employment conditions,” ignores a reasonable reading of that
policy. The Board has held that “[t]he test of whether a state-
ment is unlawful is whether the words could reasonably be
construed as coercive, whether or not that is the only reasonable
construction.” Double D Construction Group, Inc., 339 NLRB
303, 304 (2003). In any event, even if the rule is ambiguous,
any ambiguity in a work rule that may restrict protected con-
certed conduct “must be construed against the [employer] as the
promulgator of the rule.” Ark Las Vegas Restaurant Corp., 343
NLRB 1281, 1282 (2004) (an ambiguity in a “no-loitering” rule
construed against the employer). See also Norris/O’Bannon,
307 NLRB 1236, 1245 (1992).
I conclude that a plain and reasonable reading of the rule in
question would serve to chill employees’ interest in engaging in
lawful concerted activity by alerting the press to work related
concerns regarding wages, hours, and terms and conditions of
employment. As such, the very maintenance of the rule, with-
out any actual enforcement, interferes with, restrains, and co-
erces employees in the exercise of their Section 7 rights. Ac-
cordingly, the maintenance of the rule in question constitutes a
violation of Section 8(a)(1) of the Act, as alleged in complaint
paragraph 5(m)(2), as referenced in the Motion to Amend
Complaint. (GC Exh. 2.)
7. The flyer
In complaint paragraphs 5(n)(1), (2), and (3), as is reflected
in the Motion to Amend Complaint (GC Exh. 2), the General
Counsel alleges that in about mid-November 2011, the Re-
spondent, by Fabian Franco and Tim DeCrow, in a flyer: (1)
unlawfully disparaged the Union and those that supported the
PORTOLA PACKAGING, INC. 1343
Union by telling employees “don’t be a loser!”; (2) threatened
employees with loss of benefits if they supported the Union;
and (3) informed its employees that it would be futile for them
to select the Union as their bargaining representative. The Re-
spondent denies that its campaign flyers contained any state-
ments that would constitute unfair labor practices.
Counsel for the General Counsel indicates in her posthearing
brief that the flyer in question, which was written in both Eng-
lish and Spanish, was posted at the Respondent’s facility, and
also handed out by Franco during his “after-shift” meetings.
Counsel states that the alleged offending flyer is in evidence as
General Counsel’s Exhibit 11, which is a two-page document,
one page in English and one in Spanish. However, in counsel
for the Respondent’s posthearing brief, when he addresses this
issue, he refers to a Spanish-language flyer that is in evidence
as General Counsel’s Exhibit 19. The text of this one-page
Spanish-language flyer was translated on the record into Eng-
lish by the Spanish-language interpreter during the hearing. So,
in addressing these allegations, the General Counsel and the
Respondent are referring to different flyers. Despite this dis-
crepancy, the legal issues in question are addressed by both
parties, although the content of the flyers is different.
I will direct my attention to the flyer in evidence as General
Counsel’s Exhibit 11, as this is, according to counsel for the
General Counsel, the alleged offending flyer, and the General
Counsel has the burden of proof. The flyer is headed with the
statement, “Don’t be a loser! Say No to the Union.” It is fol-
lowed by numerous statistics regarding such matters as: per-
centage of organized workers in the work force, numbers of
union certification elections held, number of union election
victories; number of union election petitions withdrawn; and
the number of union decertification elections held and the re-
sults. The one-page flyer has a concluding paragraph, which
asks the question, why if unions are successful are the numbers
of union members declining? The final sentence reads: “Ac-
tions speak for themselves: union representation is a game in
which you will always LOSE. Vote NO X” (emphasis as in
original). On the Spanish-language version only, there are
black and white drawings of a soccer player kicking a ball, a
soccer ball going into a goal, a baseball player hitting an en-
larged baseball, and a basketball hoop. (GC Exh. 11.)
Counsel for the General Counsel contends that the flyer dis-
parages the Union and those that support it by suggesting that
they are “losers,” by suggesting the futility of representation,
and by implicitly saying that benefits will be lost if the Union
wins the election. That is all nonsense. The flyer says nothing
of the sort. The language of the flyer does not have the implicit
meanings that the General Counsel attributes to it.
This flyer constitutes election campaign propaganda. It is to-
tally permissible under Section 8(c) of the Act. It is the Em-
ployer’s expression of views, disseminated in writing, which do
not contain a threat of reprisal, or force, or promise of benefit.
It does not constitute an unfair labor practice.
The Respondent’s employees are adults, and certainly they
understand that campaign propaganda constitutes the view
point of a particular party to an election, and need not, and
should not be accepted at face value as accurate. It is axiomatic
that the Board does not police the correctness and accuracy of
every statement made by an employer during an election cam-
paign, so long as those statements do not contain a threat of
reprisal, or force, or promise of benefit. See Sears, Roebuck &
Co., 305 NLRB 193 (1991) (“Words of disparagement alone
concerning a union or its officials are insufficient for finding a
violation of Section 8(a)(1).”). The communication in the flyer
under review is of the type routinely used in election cam-
paigns, where the Board leaves it up to employees to shift
through the parties’ propaganda, reach their own conclusions
about the relative merits, and make an informed choice. See
Shopping Kart Food Market, 228 NLRB 1311, 1313 (1977)
(“We believe that Board rules in this area must be based on a
view of employees as mature individuals who are capable of
recognizing campaign propaganda for what it is and discount-
ing it.”).
It is not unlawful, disparaging, or denigrating to the Union or
its supporters to point out the risks of union representation and
collective bargaining and to urge that those risks be avoided.
See, e.g., Poly-America, Inc., 328 NLRB 667, 669 (1999), affd.
in part and revd. in part 260 F.3d 465 (5th Cir. 2001) (“It is
well settled that Section 8(c) . . . gives employers the right to
express their views about unionization or a particular union as
long as those communications do not threaten reprisals or
promise benefits”); Children’s Center for Behavioral Develop-
ment, 347 NLRB 35 (2006) (“an employer may criticize, dis-
parage or denigrate a union without running afoul of Section
8(c)(1), provided that its expression of opinion does not threat-
en employees or otherwise interfere with the Section 7 rights of
employees”); Trailmobile Trailer, LLC, 343 NLRB 95 (2004)
(argument involving disparaging remarks is left routinely to the
good sense of employees).
The flyer in question does not threaten reprisals or promise
benefits, nor does it imply that union representation or collec-
tive bargaining is futile. It does not interfere with, restrain, or
coerce employees in the exercise of their Section 7 rights. It is
not the responsibility of the Board to hold the hands of the po-
tential voters and police the accuracy of the Employer’s elec-
tion propaganda. The voters are responsible adults who should
be able to distinguish truth from fiction and likely understand
that not everything written or said during an election campaign
is accurate. As long as the Employer is not threatening repris-
als or promising benefits, the Board will not interject itself into
the campaign. As mentioned above, the Board has traditionally
ruled that election campaigns are best evaluated by the voters
themselves. See, e.g., Shopping Kart Food Market, supra; Mid-
land National Life Insurance Co., 263 NLRB 127, 133 (1982).
Accordingly, I shall recommend to the Board that complaint
paragraphs 5(n)(1), (2), and (3), as reflected in the Motion to
Amend Complaint (GC Exh. 2) be dismissed.
8. The video
It is alleged in complaint paragraphs 5(o)(1), (2), and (3), as
referenced in the Second Motion to Amend Complaint (GC
Exh. 26), that in late November 2011, the Respondent, by play-
ing a video at the Respondent’s facility during working hours,
which was viewed by employees: (1) threatened employees by
implying that the Union was behind the vandalism and violence
depicted on the video; (2) disparaged the Union by implying
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1344
that the Union was behind the vandalism and violence depicted
on the video; and (3) threatened employees with termination by
telling employees that the Union could request their termination
in “right to work” States. The Respondent denies that this vid-
eo indicated or implied anything orally or visually that could
reasonably constitute either an unfair labor practice or objec-
tionable conduct.
LRI provided the Respondent with antiunion videos. There
were eight videos in total, four in English and four Spanish
counterparts. The Spanish and English “pared” versions cov-
ered roughly the same material, although the individual “em-
ployees” giving interviews or testimonials were different. The
Spanish videos played in the lunchroom and the English ones
ran on a monitor in a hallway. Each video was played continu-
ously for 24 hours, and then substituted for a different one the
next day. The videos played at a very high volume, uncomfort-
ably high such that Evangeline Villegas mentioned the noise
three times in her testimony, and indicated that she sometimes
left the lunchroom to avoid it. Villegas also testified that the
video disheartened her and her coworkers and made them
afraid. The video played at the hearing was approximately 20
minutes long, which would mean it would have been repeated
22 times in a 24-hour period.
Two of these videos are the basis of these unfair labor prac-
tice allegations and objections to the election. Both videos
were screened at the hearing, with the Spanish-language video
being translated by the interpreter into the record, and the Eng-
lish-language video directly recorded into the record. A tran-
script of the English video was also admitted into evidence. (U.
Exh. 8.) The English video is entitled, “Your Job on the Line”
and the Spanish video is entitled, “Job Security and Strikes.”
The videos are presented in a newscast style, and alternate
between two “anchors” speaking and with interviews of “em-
ployees” in the field. The videos discuss the alleged hardships
of employees involved in strikes and the alleged problems for
employees created by labor organizing and collective bargain-
ing. There is talk on the video of permanent replacements,
boycotts, and plant shutdowns. Some of the subjects broached
are in legal form. For example, the discussion of permanent
replacements quotes from a Board decision. Other parts of the
video consist of discussions of actual organizing campaigns and
of unionized facilities. These include interviews with persons,
purported to be actual union organizers and represented em-
ployees, who “volunteered” to share their experiences for the
camera. Clearly, the intent of the video is to place unions, un-
ion representation, and collective bargaining in a very negative
light. The aim of the video is obviously to convince the viewer
not to support a union organizing campaign, in this instance the
soon to be conducted election at Portola.
While the two videos are very similar, they are not identical.
Counsel for the General Counsel makes it clear in her posthear-
ing brief that it is the Spanish-language video that allegedly
violates the Act. She contends that the video depicts acts of
vandalism with the distinct impression being left with the view-
er that the Union was responsible for this violence. Further, she
contends that the video implies that unions have the ability,
unrestricted, to ask an employer to fire an employee who does
not pay union dues. Allegedly, the video misstates the law, as
it does not distinguish between a “right to work” State such as
Arizona and a nonright to work State.
However, in both the posthearing briefs from counsel for the
Union and counsel for the Respondent, it appears that they are
addressing issues in the English-language video. My review of
the evidence strongly suggests that counsel for the General
Counsel has simply made an inadvertent error in referring to
the Spanish-language video, and it is actually the English-
language video, “Your Job on the Line,” which alleged contains
the offending scenes and language. Therefore, I will address
my comments and analysis to that video.
At one point in the video, there is discussion regarding a
strike that occurred at a unionized employer, Basic Vegetables
in King City, California. It recounts a break down in collective
bargaining, resulting in a strike. Employee interviewees de-
scribe how the strike lasted much longer than expected and
created tension in the community, especially between strikers
and those employees who crossed the picket line. Those who
crossed the picket line describe harassment, insults, threats, and
broken windows. One of the purported news anchors then
states: “Now months into the strike, daily reports of violence
and vandalism have become common throughout the town.
King City was a community being torn apart by a union strike.
Local union leaders continued to claim the company was losing
money and would soon give in to their demands.” While he is
talking, the video on screen depicts a car being vandalized.
There is a date and time stamp on the screen that reads, Oc-
tober 15th 1999, and shows 1:13 am. The parties stipulated on
the record as to specifically what the screen depicted, but basi-
cally it shows a vehicle being vandalized by two individuals.
They appear to be breaking the vehicle’s windows, and perhaps
damaging the tires. The scene is somewhat “grainy,” and ap-
pears to be filmed through a window. After viewing this scene,
I was unable to determine whether it was an actual depiction of
a car being vandalized in real time, or a dramatization of an
event filmed for demonstrative purposes. In any event, I do not
believe it matters for purposes of resolving the alleged unfair
labor practices.
The General Counsel alleges that the scene in question im-
plies that the union was behind the vandalism, and, thus, was
threatening to the employees at Portola and disparaging of the
Union. However, in my view, that contention is highly inaccu-
rate. Both from the narrative and visual scene on the video, it
would appear to any reasonable person that the vandalism being
shown and reported related solely to the strike at Basic Vegeta-
bles in King City, California. The “anchor man” is reporting on
that strike and has clearly identified it as the one involving
Basic Vegetables. The date and time stamp that appears on the
screen as the vandalism is being depicted shows a date some 12
years earlier. Further, there is absolutely nothing on the video
as would connect the union organizing the workers at Portola in
Tolleson, Arizona, with a strike at a different business, located
in King City, California, some 12 years earlier.
I simply fail to see any connection between the events de-
picted on the video screen and the Union’s organizing cam-
paign at Portola. I do not believe that any reasonable employee
who viewed the video at Portola prior to the election would find
any nexus between the Union and the vandalism depicted on
PORTOLA PACKAGING, INC. 1345
the video. I do not believe that by showing the video, the Re-
spondent was implying that the Union was behind the vandal-
ism depicted on the screen, and, concomitantly, no reason for
employees to feel threatened, or any reason for anyone to con-
clude that the scene disparaged the Union. Further, there is no
reasonable basis for employees to conclude that simply because
there was allegedly violence associated with a strike in Califor-
nia some 12 years earlier, that they should fear violence in con-
nection with the organizing campaign at Portola. Such alleged
implications are unreasonable, and “a bridge too far.” Accord-
ingly, I shall recommend to the Board that complaint para-
graphs 5(n)(1) and (2), as reflected in the Second Motion to
Amend Complaint, be dismissed.
Regarding the General Counsel’s allegation that the video
“threatened employees with termination by telling employees
that the Union could request their termination in ‘right to work’
states” (complaint par. 5(n)(3), as reflected in the Second Mo-
tion to Amend Complaint, GC Exh. 26), counsel for the Gen-
eral Counsel is rather cryptic in offering evidence in support of
this contention. In her posthearing brief, counsel for the Gen-
eral Counsel devotes only a very short paragraph in support of
this complaint allegation. She says, “[T]he video implies that
unions have the ability, unrestricted, to ask an employer to fire
an employee who does not pay his or her dues. This video
makes no distinction between a ‘right to work’ state such as
Arizona or a non-right to work state where a union may or may
not have that ability.” Unfortunately, counsel does not indicate
where in the video this alleged offending language appears.
However, my review of the English-language video tran-
script (U. Exh. 8) discovered the following narrative. In the
video the female anchor explains: “Some actions taken by un-
ions directly threaten the job security of members. Here’s a
letter from a union to an employer. The first paragraph states
that an employee has failed to become a member of the union
and pay dues. The second paragraph says, ‘We therefore re-
quest that in accordance with the union contract, this employee
be discharged.’” The anchor then continues, “A request like
this is not unusual. People accused of violating certain provi-
sions of the union’s constitution, local bylaws, or collective
bargaining contract can be let go by their employer at the un-
ion’s request. During contract negotiations, unions bargain
hard for this kind of power.”
Counsel for the General Counsel offered no case law or ar-
gument in support of this allegation. However, counsel for the
Respondent did. The Respondent argues that at most what
exists here is a failure to explain the right to work provision in
Arizona. The case law cited by counsel, Shopping Kart Food
Market, supra at 1313; Midland National Life Insurance Co.,
supra at 133, stands for the proposition that the Board does not
generally probe into the truth or falsity of the parties campaign
statements. Further, the “mere fact that a party makes an untrue
statement, whether of law or fact, is not grounds for setting
aside the election.” John W. Galbreath & Co., 288 NLRB 876,
877 (1988). See Furr’s, Inc., 265 NLRB 1300, 1300 fn. 10
(1982) (there is “no basis for treating misrepresentations of law
differently from other misrepresentations”). Nor presumably
would it constitute an unfair labor practice.
I am of the view that the video’s failure to provide a more
comprehensive discussion and treatment of Arizona’s right to
work law does not make the video unlawful when presented in
Arizona.16 It does not impliedly threaten that any employee of
the Tolleson facility will be terminated because of a request
from the Union. It remains the responsibility of the potential
employee voters to educate themselves as to the truth or falsity
of campaign propaganda, whether from the Employer or the
Union. Accordingly, I find no violation of the Act, and shall
recommend to the Board that complaint paragraph 5(n)(3), as
referenced in the Second Amendment to Complaint (GC Exh.
26.) be dismissed.
D. Summary of Conclusions
In summary, I have found that the Respondent violated Sec-
tion 8(a)(1) of the Act as alleged in complaint paragraphs:
5(b)(2), (3), (d)(1), (2), (e)(1), (2), (3), (f)(1), (2), (3), (g),
(h)(1), (2), and (m)(2). Further, I have recommended that the
following complaint paragraphs be dismissed: 5(b)(1), (c),
(h)(3), (i), (j), (k), (l), (m)(1), (n)(1), (2), (3), (o)(1), (2), and
(3).
IV. THE REPRESENTATION CASE
A. The Challenged Ballots
As noted earlier in this decision, the tally of ballots from the
election held on December 1, 2011, showed that there were 3
challenged ballots, a number sufficient to affect the results of
the election. The Union had challenged the ballots of the three
“process technicians,” Thomas Turner, Michael Burns, and
Gabriel Hernandez, contending that they were not properly
included in the stipulated unit. To the contrary, the Employer
contends that the process technicians are actually “production
workers,” and specifically included in the stipulated unit. It is
axiomatic that the Union, as the party challenging the votes of
the process technicians, has the burden of proof and must estab-
lish the ineligibility of the challenged voters. I believe that the
Union has met this burden.
The Stipulated Election Agreement entered into by the par-
ties and approved by the Regional Director on November 7,
2011, provides for a unit of “All full-time and regular part-time
production workers including machine operators, sanitation,
and packaging employees . . .,” excluding all other employees,
including certain named classifications. However, the term
“process technicians” is not listed in either the inclusions or
exclusions. Nevertheless, it is clear that what the Union was
seeking in its petition for an election and what the parties
agreed to in the stipulated unit was a group of production work-
ers. Unfortunately, the Employer does not actually have a clas-
sification of employees designated as “production workers.”
The Union contends that the term “production workers” refers
to the employees classified as “production team members,”
who are also allegedly known as “operators,” while the Em-
ployer contends that the term “production workers” or “opera-
16 Apparently this same video is used by LRI and sent to its clients in
various States of the United States, both right to work and nonright to
work States.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1346
tors” refers to the process technicians, whose status in the unit
is disputed by the Union.
The Board uses a three-step analysis when resolving deter-
minative challenge ballots in cases involving stipulated bar-
gaining units. First, the Board determines whether the stipula-
tion is ambiguous. Where the objective intent of the parties to
the stipulation is clearly and unambiguously expressed in the
stipulation, the Board merely enforces the agreement. Howev-
er, if the stipulation is ambiguous, the Board will seek to de-
termine the parties’ intent through the normal methods of con-
tract interpretation, including by the examination of extrinsic
evidence. Finally, if the parties’ intent still cannot be dis-
cerned, then the Board determines the bargaining unit by em-
ploying the normal “community of interest” test. Caesars Ta-
hoe, 337 NLRB 1096 (2002).
Unfortunately, it appears that the stipulated unit is ambigu-
ous. There is no mention in the stipulated unit of “process
technicians,” either in the classifications included or excluded.
Further, while the term “machine operators” is included in the
unit, the Employer does not actually have such a classification
of employees. Therefore, the Board cannot simply enforce the
terms of the stipulation.
Seeking to determine the parties’ intent through the normal
methods of contract interpretation is also problematic. As men-
tioned, it is obvious from the way the stipulated unit is de-
scribed that the Union is basically seeking to represent a group
of production workers. But there is no such classification. The
parties agree that the largest group of employees included in the
unit is classified as “production team members.” Out of a total
of 44 employees included on the Excelsior list, 33 were produc-
tion team members.17 Of the production team members who
testified at the hearing, most of them indicated that they refer to
themselves as “operators.” However, a number of the Employ-
er’s supervisors who testified indicated that they were unaware
that the production team members referred to themselves as
“operators,” and that, in fact, the group that most nearly per-
formed the duties of “operators,” were the process technicians.
I find this position taken by some of the Employer’s supervi-
sors to be totally disingenuous. It is inconceivable that with the
production team members regularly referring to themselves as
“operators,” the supervisors could be unaware of such. Further,
as will be apparent following a description of the respective
work performed by the production team members and the pro-
cess technicians, the term “operator” much more closely de-
scribes the work performed by the production team members
than it does that work performed by the process technicians. In
my opinion, the effort on the part of the Employer to try and
portray the process technicians as “operators” is merely part of
the campaign to have them included in the stipulated unit so
that they might vote in the election.
In any event, because the use of the various terms in ques-
tion, “production team member, process technician, and opera-
tor,” are somewhat confusing, because the testimony of the
witnesses is somewhat contradictory, and because the parties
17 Of the other employees included on the Excelsior list, four were
team member leads, three were staging team members, three were
process technicians, and one was a sanitation employee.
hold contrary views, I will not attempt to decide the issue of the
parties’ intent through normal methods of contract interpreta-
tion. Rather, I will resolve the question of the determinative
challenge ballots through the Board’s normal community-of-
interest test.
In determining whether employees share a “community of
interest,” the Board considers the following factors: “[W]hether
the employees are organized into a separate department; have
distinct skills and training; have distinct job functions and per-
form distinct work, including inquiry into the amount and type
of job overlap between classifications; are functionally inte-
grated with the Employer’s other employees; have frequent
contact with other employees; interchange with other employ-
ees; have distinct terms and conditions of employment; and are
separately supervised.” United Operations, Inc., 338 NLRB
123, 123 (2002).
Earlier in this decision, I discussed at length the work per-
formed by certain of the Employer’s job classifications and the
way in which those employees interact with each other. How-
ever, for the purpose of establishing the community of interest
of the employees comprising the stipulated unit, it is necessary
to restate some of that information.
The largest group of employees employed at the facility is
the “production team members,” who at the time of the hearing
numbered 36. As discussed, those employees refer to them-
selves as “operators.” During each shift there are a number of
presses in operation. One production team member is assigned
to monitor each press during a shift. Besides monitoring the
production from the presses, production team members pack
the caps into boxes as the caps come off a conveyor belt from
the presses. They seal the boxes, label them, and take the boxes
to a central conveyor, which transports them to a staging area.
“Production team leads” work alongside the production team
members, relieving the team members when they go on breaks.
The team leads assist the “production supervisors” who are
responsible for the output from the presses. The production
team members and the team leads report directly to the produc-
tion supervisors.
“Staging team members” receive boxes of caps from the
production team members, and sort the boxes on individual
pallets according to the customer and product. They then move
the loaded pallets from the staging area to the warehouse. Stag-
ing team members report to the production supervisors.
The production team members, production team leads, and
staging team members all share a significant community of
interest. However, in my view, the process technicians do not
share this community of interest.
The process technicians are primarily responsible for pro-
gramming into control panels on the presses the various com-
puterized settings, such as temperature, pressure, and speed,
which affect the production of the various machines. They also
provide a daily report on the performance of the molds, specifi-
cally the percentage of individual cavities within each mold that
are functioning properly. It is the steel molds on the presses
that contain cavities into which the plastic is injected. The
process technicians are not assigned to a specific press, but,
rather, they circulate around the production floor trouble shoot-
ing the presses. Sometimes the process technicians are required

PORTOLA PACKAGING, INC. 1347
to open up the presses to inspect the cavities and, if necessary,
block off cavities that are not functioning properly. While var-
ious witnesses testified differently, the evidence indicates that
the process technicians spend between 40 and 70 percent of
their working time on the production floor, with the remainder
of their time spent in various locations and offices preparing
reports on laptop computers. The process technicians do not
report to the production supervisor, but instead report directly
to Production Manager Tim DeCrow.
Once the process technicians program information into the
control panels on the presses, they have no direct responsibility
for the production of the presses. That duty falls to the produc-
tion team members, one assigned to each press, who watch that
press to ensure it is functioning properly. If a press is not func-
tioning properly, the production team member normally does
not try and repair it, but will alert the appropriate employee,
such as a “maintenance technician” (mechanic) or process
technician. The process technicians have access to simple hand
tools, which they use to inspect the cavities in the molds. The
production team members consider themselves “operators”
because they are assigned to specific machines, watching them
produce the product, with the first responsibility to spot a mal-
function. Serious equipment failures are usually repaired by
the maintenance technicians, who are excluded from the unit.
While the process technicians spend approximately half their
time on the production floor, the remainder of their time is
spend preparing reports on their laptop computers, usually in
offices that are not individually assigned to them. They will
occasionally serve as a replacement for a production team
member who is on break, but normally that duty is performed
by the production team member leads. Production team mem-
bers, all of whom spend their full working time on the produc-
tion floor, must get permission before taking a break, as others
must be assigned to watch their machines while they are gone.
The process technicians do not have to ask permission before
leaving the production floor, and they apparently move freely
between the production floor and office space.
Production team members are generally one of the lowest
paid classifications at the facility. Process technicians are a
higher paid classification, and, depending on the specific indi-
vidual worker, may be paid as much as twice the rate of the
production team member. Even higher paid classifications are
the process specialist and process engineer, both of which have
a higher education and level of training. According to Produc-
tion Manager DeCrow, the process technician, process special-
ist, and process engineer all focus on the performance of the
molds, and the process-related variables that influence that
performance. While there is some limited overlap in the work
performed by the process technicians and the production team
members, it seems apparent that the process technicians have
considerably more work overlap with the process specialists
and process engineers, who work directly with the molds.
In determining with which employees the process techni-
cians share a community of interest, it is instructive to review
the Employer’s job description for the position of “Process
Technician I.” (Un Exh. 2.) Some of those duties include:
“Working with Process Engineers and Corporate Engineering
to bring new products to our customers in a timely manner;
Working with Process Engineer and Mold Maintenance to ef-
fectively refurbish and maintain molds; Helping out in the day-
to-day activities in the mold shop when necessary; Filling in as
a supervisor or mold technician when the need arises; Working
independently to improve cycle time and cavitation on a daily
basis; and Giving feedback to mold technicians and supervisors
as necessary.” These duties obviously show a significant over-
lap with those specialized duties performed by the process spe-
cialist and process engineer. Further, it is clear from that job
description, which requires a “[m]inimum two year technical
degree or 3 years of experience with multi-cavity high speed
injection molding” that the position of process technician is
much closer in necessary expertise with that of the process
specialist and process engineer than with that of the production
team member, which requires no specialized experience or
education.
As noted earlier, the production team members, team leads,
staging team members, and sanitation employee, all of whom it
is uncontested are included in the stipulated unit, are supervised
by the production supervisors. On the other hand, the process
technicians are supervised by Production Manager DeCrow,
who also supervises those process specialists and process engi-
neers who are on GO-teams.
Based on all the above-referenced factors, I conclude that the
process technicians do not share a significant community of
interest with the classifications in the stipulated unit. On the
other hand, the process technicians share a greater community
of interest with the process specialists and process engineers.
The process technicians are ineligible to vote as not properly
included in the stipulated unit. Therefore, I conclude that the
challenges to the ballots of Thomas Turner, Michael Burns, and
Gabriel Hernandez are sustained, and their ballots shall remain
unopened and uncounted.
B. The Objections
As reflected in the Regional Director’s Order Directing
Hearing on Challenged Ballots and Objections and Notice of
Hearing (GC Exh. 1(o)), there are a number of objections to the
election referred to me for resolution, some of which are identi-
cal to the unfair labor practices alleged in the complaint.
Where the objections are identical to the unfair labor practices,
the issues will not be restated, but only the conclusions previ-
ously reached.
Objection 1
Objection 1 involves the letter from Plant General Manager
Tim Tyler sent to the homes of the Employer’s employees
around November 22, 2011, specifically the Spanish-language
version of the letter. The objection reads as follows: “On or
around November 22, 2011, the Employer stated, in a letter to
employees, ‘Te exijo que votes NO en Diciembre 1, 2011.’
The primary definition of the verb ‘exigir’ in the 2009 Oxford
Concise Spanish Dictionary is ‘to demand.’”
This objection was the subject of the unfair labor practice al-
legation found in paragraph 5(g) of the complaint. It was ex-
tensively discussed earlier in this decision. As discussed above,
I found that the Spanish-language letter, likely read by the ap-
proximately 30 Spanish-speaking employees, threatened those
employees with unspecified reprisals by “demanding” that they
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1348
vote no in the election. This demand, made in the name of the
general manager of the facility, reasonably had a tendency to
coerce employees into voting against the Union based on their
fear of the consequences of defying Tyler’s demand. Accord-
ingly, I concluded that the letter violated Section 8(a)(1) of the
Act. As I have found merit to this unfair labor practice allega-
tion, concomitantly, I also find merit to Objection 1.
Objection 2
Objection 2 involves the same letter from Tim Tyler refer-
enced above. Again, it is the Spanish-language version of the
letter that is alleged to be objectionable. As noted earlier, each
letter was addressed to the individual employee recipient, so
that the employee’s first name was in the salutation. Tim Tyler,
the author of the English-language version of the letter, signed
the document, which was translated into Spanish by Armando
Talancon, the labor relations consultant.18 This objection re-
lates to the first sentence in the final bullet point in the Spanish
version. (GC Exhs. 5 & 6.)
At the hearing, the Spanish-language interpreter was asked
by counsel for the Union to translate this bullet point, which is
actually two sentences long. After a first attempt at the transla-
tion, the interpreter asked to write out her interpretation, and
then to make another attempt at the oral translation. This se-
cond translation is the final effort by the interpreter, and clearly
the language with which she was satisfied. This second transla-
tion of the two sentences in the bullet point is as follows: “Do
not think that the salaries and benefits remain the same or im-
prove [sic],19 as a result of the negotiation. The law specifical-
ly allows the Company to maintain its last offer to the Union if
the Union and the Company cannot come to an agreement.”
Counsel for the Union argues in her brief that the first sen-
tence of the bullet point is a “threat to decrease salaries and
benefits,” if the Union is selected as the employees’ collective-
bargaining representative. However, this contention ignores the
second sentence of the bullet point, which makes it clear that
wages and benefits are a product of the bargaining process, and
that the Employer can maintain its last offer when the parties
are unable to come to an agreement. In fact, in the context of
the full bullet point, this would seem to be a legitimate state-
ment of the law, although certainly simplified to its bare essen-
tials.
As I have discussed at length earlier in this decision, under
Section 8(c) of the Act, the Employer has the right to express
negative views about the collective-bargaining process, as long
as there is no threat of reprisal or force or promise of benefit.
Clearly, references to the risks and uncertainty of collective
bargaining, including the very real possibility that some wages
and benefits may be reduced, are protected by Section 8(c), and
do not constitute unlawful threats. See Wild Oats Markets,
Inc., 344 NLRB 717, 717–718 (2005) (flyer stating that “[i]n
collective bargaining you could lose what you have now” is
protected by Section 8(c), and not unlawful). This is the very
sort of campaign propaganda, which the Board has consistently
18 Tyler signed both the English and Spanish versions of the letter.
19 The interpreter spoke the word “sic” to indicate that the Spanish-
language version of the sentence, as written, was grammatically incor-
rect.
held that employees are astute enough to be able to judge the
truth of for themselves. Accordingly, I shall recommend that
Objection 2 be overruled.
Objection 3
Objection 3 alleges that around November 17, 2011, “an
agent of the Employer told an employee that he would not help
the employee with her excess workload because the employee
was a union supporter.” This objection was the subject of the
unfair labor practice allegation found in paragraph 5(f)(3) of the
complaint. It was extensively discussed earlier in this decision.
As was discussed in detail above, I found that Supervisor
Ray Buchanan, during a conversation with employee Herlinda
Cervantes, informed Cervantes that he would not help employ-
ee Jorge Mendez with his workload because Mendez “was in
the Union.” Further, I concluded that this statement con-
stituted an unlawful implied threat to discriminate against
Mendez by refusing to help him due to his union activity, in
violation of Section 8(a)(1) of the Act. I should note that dur-
ing this same conversation, Buchanan made other statements to
Cervantes, which also constituted unlawful interrogation and
creating the impression of surveillance, independent violations
of the Act. As I have found merit to this unfair labor practice
allegation, concomitantly, I also find merit to Objection 3.
Objection 4
Objection 4 reads as follows: “During the critical period, the
Employer repeatedly played videos in the employee break room
that gave the impression of the inevitability of a strike or strikes
should the Union be voted in.” Counsel for the Union, in her
posthearing brief, expands on this objection, contending that
the video in question “implied the inevitability of strikes,” and
“implied a threat of strike violence,” both allegedly unsupport-
ed by objective facts.
Earlier in this decision, I discussed the video in question at
great length. That discussion was in connection with complaint
paragraphs 5(b)(1), (2), and (3), as reflected in the Second Mo-
tion to Amend the Complaint. (GC Exh. 26.) In those para-
graphs the General Counsel alleged that the video violated the
Act by “threatening employees by implying that the union was
behind the vandalism and violence depicted on the video; dis-
parag[ing] the Union by implying that the Union was behind
vandalism and violence depicted on the video; [and] threaten-
ing employees with termination by telling employees that the
Union could request their termination in ‘right to work’ states.”
However, I found the video did not violate the Act, as alleged
in the complaint, and I recommended dismissal of these allega-
tions.
The video in question was played to employees in both Eng-
lish and Spanish under the titles, “Your Job on the Line,” the
English version, and “Job Security and Strikes,” the Spanish
version. Both videos were screened at the hearing, with the
Spanish-language video being translated by the interpreter into
the record, and the English-language video directly recorded
into the record. A transcript of the English video was also ad-
mitted into evidence. (U. Exh. 8.)
I discussed the strike violence depicted on the video at great
length earlier in this decision, and that discussion is directly
relevant to this objection. I will not repeat that discussion here,

PORTOLA PACKAGING, INC. 1349
except to reiterated that I fail to see any connection between the
events depicted on the video screen and the Union’s organizing
campaign at Portola. I do not believe that any reasonable em-
ployee who viewed the video at Portola prior to the election
would find any nexus between the Union and the vandalism
depicted on the video. Further, I do not believe that by show-
ing the video, the Employer was implying that the Union was
behind the vandalism depicted on the screen, or that it consti-
tuted a prediction of the inevitable negative consequences of
unionization.
While the film depicts strikes as one possible consequence of
the failure of the collective-bargaining process, it does not indi-
cate that this is the inevitable outcome of union representation.
Further, although there is strike vandalism depicted in the vid-
eo, it is directly tied to a specific strike in California,20 and
nothing is said to suggest that such vandalism is typical or inev-
itable during strikes. The video, when viewed as a whole, and
where the strike is not isolated out of context, is a propaganda
film, not particularly unusual in an election campaign. Typical-
ly, the Board leaves it up to employees to sift through both
parties’ propaganda, reach their own conclusions about the
relative merits, and make an informed choice. Shopping Kart
Food Market, 228 NLRB 1311, 1313 (1976) (“[W]e believe
that Board rules in this area must be based on a view of em-
ployees as mature individuals who are capable of recognizing
campaign propaganda for what it is and discounting it”).
In my opinion, the video in question constitutes a legitimate
expression of the Employer’s view of the merits of union repre-
sentation under Section 8(c) of the Act. The Employer has a
right to express its opinion in what is clearly a propaganda film.
It does not depict strikes and violence as the inevitable conse-
quence of union representation, although they are certainly
depicted as a possible outcome. Employees exposed to cam-
paign propaganda from both sides should be left to decide the
truth for themselves, as long as no threats of reprisal or force or
promise of benefit are made. Accordingly, I find Objection 4 to
be without merit, and I recommend that it be overruled.
C. Recommendation on Election
In summary, I have found merit in Objection 1, wherein the
Employer “demanded” that employees vote against the Union,
and in Objection 3, wherein the Employer threatened not to
assist an employee who was a union supporter. I have also
found merit to the following complaint allegations, wherein
conduct occurred during the “critical period” between the filing
of the representation petition and the election, in violation of
Section 8(a)(1) of the Act: 5(e)(1), (2), (3), (f)(1), (2), (3), (g),
(h)(1), (2), and (m)(2). These violations of the Act included the
following unlawful actions: threats of discharge, threats of re-
duced wages and benefits, threats of unspecified reprisals; con-
duct constituting interrogation, creating the impression of sur-
veillance, the solicitation of complaints and grievances and the
promise of increased benefits and improved conditions of em-
ployment; and an overly-broad and discriminatory policy on
contact with the media.
20 Basic Vegetable Products in King City, California.
It is well settled that conduct during the critical period that
creates an atmosphere rendering improbable a free choice war-
rants invalidating an election. See General Shoe Corp., 77
NLRB 124 (1948). Such conduct is sufficient if it creates an
atmosphere calculated to prevent a free and untrammeled
choice by the employees. As the Board stated, “In election
proceedings, it is the Board’s function to provide a laboratory
in which an experiment may be conducted, under conditions as
nearly ideal as possible, to determine the uninhibited desires of
the employees.” General Shoe Corp., supra at 127.
I have found that the Respondent has committed numerous
and significant unfair labor practices during the critical period,
which unfair labor practices also constitute objectionable con-
duct. The Board has traditionally held that conduct violative of
Section 8(a)(1) of the Act is also conduct which interferes with
the exercise of a free and untrammeled choice in an election.
As such, it serves as a basis for invalidating an election. Ac-
cording to the Board, conduct which is violative of Section
8(a)(1) of the Act is “a fortiori, conduct which interferes with
the exercise of a free and untrammeled choice in an election.”
Playskool Mfg. Co., 140 NLRB 1417 (1963); see also IRIS
U.S.A., Inc. 336 NLRB 1013 (2001); Diamond Walnut Grow-
ers, Inc., 326 NLRB 28 (1988). Further, the Board has held
that this is also “because the test of conduct which may inter-
fere with the ‘laboratory conditions’ for an election is consider-
ably more restrictive than the test of conduct which amounts to
interference, restraint, or coercion which violates Section
8(a)(1).” Dal-Tex Optical Co., 137 NLRB 1782 (1962). See
also Overnite Transportation Co., 158 NLRB 879 (1966); Ex-
celsior Underwear, 156 NLRB 1236 (1966).
However, not all unfair labor practice conduct will warrant
setting aside an election. In Caron International, Inc., 246
NLRB 1120 (1979), the Board rejected a per se approach to the
fortiori language of Playskool. Instead, the Board said the test
was an objective one, that being whether the conduct has a
tendency to interfere with employees’ free choice. Hopkins
Nursing Care Center, 309 NLRB 958 (1992). See also Recycle
America, 310 NLRB 629 (1993) (where the Board found that
the unfair labor practices were not sufficient to set aside the
election).
The Board weighs a number of factors in determining
whether 8(a)(1) violations of the Act, and presumably separate
objectionable conduct as well, are sufficient to warrant setting
aside an election. In the face of unfair labor practices and meri-
torious objections, the Board may still decline to overturn the
results of an election where it concludes that the violations
and/or conduct are de minimis. Bon Appetit Management Co.,
334 NLRB 1042 (2001); Caron International, Inc., 246 NLRB
1120 (1979). Still, 8(a)(1) violations fall within the de minimis
exception only when these violations “are such that it is virtual-
ly impossible to conclude that they could have affected the
results of the election.” Super Thrift Markets, 233 NLRB 409,
409 (1977), cited in Sea Breeze Health Care Center, 331
NLRB 1131 (2000).
In determining whether the misconduct could have affected
the results of the election, the Board considers “the number of
violations, their severity, the extent of dissemination, the size of
the unit and other relevant factors.” Clark Equipment Co., 278

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1350
NLRB 498, 505 (1986); Avis Rent-a-Car, 280 NLRB 580, 581
(1986); Chicago Metallic Corp., 273 NLRB 1677, 1704 (1985).
Regarding those factors, several are of particular importance in
considering those objections and unfair labor practices before
me that I have determined have merit. This was an extremely
close election, with a tie vote between those cast for the Peti-
tioner and those cast against.21 Obviously, the election results
could not have been any closer. The Board has held that in a
close election the objectionable and/or unlawful conduct need
not be as severe or have affected as many employees in order to
warrant setting aside the election. The narrowness of the vote
in an election is a relevant consideration. Robert Orr-Sysco
Food Services, 338 NLRB 614 (2002); Cambridge Tool & Mfg.
Co., 316 NLRB 716 (1995); also see Avis Rent-a-Car, supra.
Further, the meritorious objections and unfair labor practices
committed by the Employer in this case were pervasive. I have
found improper conduct committed during the critical period by
literally every company official supervising the employees in
the voting unit, including Plant General Manager Tyler, Human
Resources Manager McClanahan, Production Manager
DeCrow, and Supervisors Franco and Buchanan. The labor
relations consultant hired to conduct the Employer’s election
campaign, Armando Talancon, was also found to have commit-
ted unfair labor practices. This improper and/or unlawful con-
duct was sever, including threats to discharge, threats to reduce
wages and benefits, and threats of other unspecified reprisals,
interrogation, creating the impression of surveillance, and solic-
itation of complaints and promises of benefits, all in an effort to
defeat the Union in the election. Additionally, the Employer’s
conduct was widely disseminated and permeated the voting
unit. Especially egregious and received by each member of the
voting unit was the letter from Plant General Manager Tyler
wherein he stated on the Spanish-language version of the letter
that he “demanded” that the employees vote “no” in the elec-
tion.
These were significant unfair labor practices and objections,
which would clearly have had a tendency to seriously inhibit
the employees’ willingness to engage in union activity, and
would likely have created an atmosphere unconducive to a free
and untrammeled choice by the employees. The Employer’s
conduct destroyed the laboratory conditions required by the
Board.
Based on the above, I conclude that the objectionable con-
duct and unfair labor practices engaged in by the Employer
have tended to interfere with the free and fair choice of a de-
terminative number of voting unit employees. Accordingly, as
the election results do not reflect the employees’ free and fair
choice, I recommend that the election be set aside and that this
proceeding be remanded to the Regional Director for Region 28
for the purpose of conducting a second election.
CONCLUSIONS OF LAW
1. The Respondent, Portola Packaging, Inc., is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
21 This assumes that, as I have found, the three challenged voters
were not eligible to vote, and their ballots will not be counted.
2. The Union, United Food and Commercial Workers Union,
Local No. 99, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By the following acts and conduct the Respondent has vio-
lated Section 8(a)(1) of the Act:
(a) Orally promulgating an overly-broad and discriminatory
rule prohibiting employees from discussing their wages and
those of other employees with each other.
(b) Orally promulgating an overly-broad and discriminatory
rule prohibiting employees from discussing what occurred in
meetings with the Respondent’s supervisors with other employ-
ees.
(c) Threatening its employees with discharge for engaging in
concerted activities.
(d) Threatening its employees with unspecified reprisals for
engaging in concerted activities.
(e) Soliciting employee complaints and grievances, and
promising its employees increased benefits and improved terms
and conditions of employment if they rejected the Union as
their collective-bargaining representative.
(f) Threatening its employees with discharge if they chose
the Union as their collective-bargaining representative.
(g) Threatening its employees with unspecified reprisals if
they chose the Union as their collective-bargaining representa-
tive.
(h) Interrogating its employees about their union and con-
certed activities.
(i) Creating an impression among its employees that their un-
ion and other concerted activities were under surveillance by
the Respondent.
(j) Threatening its employees with withholding assistance to
them because they engaged in union and other concerted activi-
ties.
(k) Threatening its employees with unspecified reprisals by
demanding employees vote “no” in the upcoming representa-
tion election.
(l) Threatening its employees with reduced wages and bene-
fits if the Union was selected as the employees’ collective-
bargaining representative.
(m) Maintaining an overly-broad and discriminatory rule in
its employee handbook prohibiting and restricting its employ-
ees’ contact with the news media.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designated to effec-
tuate the policies of the Act.
The Respondent shall be required to post a notice that as-
sures its employees that it will respect their rights under the
Act. In addition to physically posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by
such means. J. Picini Flooring, 356 NLRB 11 (2010).
Also, having found that a provision in the Respondent’s em-
ployee handbook, as referenced above, is overly-broad and
discriminatory, the recommended order requires that the Re-

PORTOLA PACKAGING, INC. 1351
spondent revise or rescind the unlawful language, and advise its
employees in writing that said provision has been revised or
rescinded.
Further, as indicated above, I have found that the Respondent
engaged in both objectionable conduct and unfair labor practic-
es affecting the results of the election in Case 28–RC–067973.
I recommend, therefore, that the election in this case held on
December 1, 2011, be set aside, that a new election be held at a
date and time to be determined in the discretion of the Regional
Director for Region 28, and that the Regional Director include
in the Notice of Election the following language:
NOTICE TO ALL VOTERS
The election held on December 1, 2011, was set aside because
the National Labor Relations Board found that certain conduct
of the Employer interfered with the employees’ free exercise
of a free and reasoned choice. Therefore, a new election will
be held in accordance with the terms of this Notice of Elec-
tion. All eligible voters should understand that the National
Labor Relations Act gives them the right to cast ballots as
they see fit and protects them in the exercise of this right free
from interference by any of the parties.22

[Recommended Order omitted from publication.]

22 Lufkin Rule Co., 147 NLRB 341 (1964).